-: 1 :- CAA-242/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. NO. 242 OF 2011 IN APPEAL FROM ORDER NO. 146 OF 2006 Dinesh Govind Joshi. ...Appellant. Versus Bhagwandas Tulsidas Vakani& Others. ..Respondents. Mr. R. M. Hardas for the Appellant. Mr. Jatin B. Vakani, respondent no.2-in-person is present. Ms. Neha B. Vakani, respondent no.1(b)-in-person is present. Coram : RANJIT MORE, J. Date : June 17, 2011. P. C. : 1. Heard learned counsel for the petitioner and Respondent no.2 and respondent no.1(b), who are appearing in person. 2. This civil application is filed for bringing the legal heirs of deceased respondent no.1 on record. The appellant has also made a prayer for condonation of delay and setting aside abatement of appeal as against deceased respondent no.1. 3. Respondent no.1 expired on 15/10/2009 and the present civil application is filed on 5/7/2010. The Office Note shows that there is delay of 145 days. Respondent no.2, however states that there is delay of 214 days. In paragraph l7 of the srp -: 2 :- CAA-242/11 civil application, the appellant has contended that initially he had engaged the services of another advocate and since that advocate did not take any steps, the appellant was constrained to engage the services of present advocate-on-record. He has further contended that during the month of June 2010, the present advocate advised him that civil application to bring the legal heirs of respondent no.1 on record, is required to be filed, and thereafter the present civil application is filed. It is also stated that the appellant was not aware about the fact that legal heirs are required to be brought on record within the stipulated period. 4. Respondent no.1(b) and respondent no.2, who are appearing in person, opposed this civil application. Respondent no.2 has also filed reply and tendered written submissions. In his reply, respondent no.2 has submitted that he had filed affidavit-in-support of Chamber Summons No. 807 of 2009 in S.C. Suit No. 388/2000, wherein it was mentioned that respondent no.1 has expired on 15/10/2009; this affidavit was filed in the City Civil Court on 30/11/2009 and a copy of this affidavit was received by the appellant on 4/12/2009. It is further submitted that the said Chamber Summons was allowed by consent of the parties by the City Civil Court vide its -: 3 :- CAA-242/11 order dated 7th December 2009 and the amended copy of the plaint was served on the appellant on 21/12/2009. In these facts, it is submitted by respondent no.2 that the appellant was well aware about the death of respondent no.1 in the month of November 2009 itself, and now the appellant cannot show ignorance about this fact. Respondent no.2 in support of his contentions, relied upon judgment of the Apex Court in the matter of State of Gujarat v/s. Sayed Mohd. Bquir El Edross [(1981) 4 SCC 1]. 5. Having considered the submissions of both sides and having gone through the application, reply and written submissions tendered by both sides, I am of the opinion that the present civil application deserves to be allowed. 6. In the application and also in the rejoinder it is the case of the appellant that he was not aware about the procedure. It was also specific case of the appellant that he discontinued the services of earlier advocate, since he was not co-operating with the appellant. In his rejoinder, the appellant has made following statements : “I say that as my earlier Advocate was not taking steps, therefore, I changed my earlier Advocate. My present -: 4 :- CAA-242/11 advocate came on record in the month of May and after the May vacation during discussions with him, I came to know that such an Application is required to be filed. I say that the earlier Advocate was also appearing in City Civil Court and in that Court also I have engaged another Advocate. I, therefore, say that it cannot be said that I had knowledge about the same. I say that it is true that in L.E.&C. Suit No.443/467 of 2001, the legal heirs were brought on record in the month of January. But, however, I was not aware as to whether such an application is required to be filed in the present proceedings. I say that I realised only when my present Advocate advised me to that effect. I say that I am not keeping well. I am more than 70 years of age. I am suffering from various ailments. I say that I cannot walk properly. I respectfully submit that I was not aware that such application is required to be filed and therefore there is delay in filed the present application.” 7. In above circumstances, I find that the appellant was aware about the death of respondent no.1. However, his case is that he was not aware about the procedure and his earlier advocate did not take necessary steps in time. In my view, the appellant has shown sufficient cause to condone the delay. In the matter before Apex Court in State of Gujarat v/s. Sayed Mohd. Bquir El Edross no reasons were assigned for condonation of inordinate delay. Therefore, ratio of this decision cannot be made applicable to the facts of the present -: 5 :- CAA-242/11 case. It is settled position of law that the words “sufficient cause” in section 5 of the Limitation Act should receive liberal construction so as to advance the substantial justice. A reference can be made to the decision of Division Bench of this Court in Sitaram Ramcharan v/s. M. N. Nagrashna reported in 1954 BLR Vol.LVI 931. 8. Taking overall view of the matter, I find that the appellant has made out a case for condonation of delay. The application is, therefore, allowed in terms of prayer clauses (a), (b) and (c). Necessary amendment be carried out within two weeks from today. (Ranjit More, J.)