-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL ALPPLICATION NO.621 OF 2008 IN SECOND APPEAL NO.245 OF 1988 1.Vishnu Rama Jadhav since deceased through legal heirs & Representatives :- 1A. Jaykumar Vishnu Jadhav & Ors...Applicants Versus 1.Dhondiba Annappa Kamble & Anr..Respondents Mr.Vijay Killedar, for the Applicants Mr. P.D. Dalvi, for the Respondents. CORAM : R.M.SAVANT, J. CORAM : R.M.SAVANT, J. CORAM : R.M.SAVANT, J. DATED : 14TH AUGUST,2008 DATED : 14TH AUGUST,2008 DATED : 14TH AUGUST,2008 P.C. P.C. P.C. . By the above Civil Application the Applicants pray for setting aside the abatement which has occurred on account of the death of sole Appellant on 12th March, 1999 and for condonation of delay of 3 years and 51 days in filing the application for setting aside the abatement. 2. The justification for the delay caused is mentioned in para.2(ii) of the Civil Application. It is mentioned that on the death of the original appellant on 12th March, 1999 the applicants who are the heirs of the Appellant had informed the then Advocate of the Appellant to file a Civil Application. Accordingly a draft of the Civil Application was prepared and affirmed by the Applicants. However, the same remained to be filed. Since the said Application was not filed the Second Appeal was dismissed as abated by order dated 7th June, 2004. -2- 3. Per contra it is submitted by the learned Advocate appearing for the contesting respondents Shri P.D. Dalvi that there is no justifiable reasons shown by the applicants for the delay of 3 years and 51 days. The learned Counsel submitted that the reasons mentioned in para.2(ii) are inadequate. 4. In my view considering that the Second Appeal was admitted and also considering the reasons cited in para.2(ii) the applicants have made out a case for condonation of delay and for setting aside the abatement which has been caused by the order dated 7th June, 2004. 5. It is well settled that a party should not be non-suited for technical reasons but should be allowed to prosecute its remedy on merits. In that view of the matter the Civil Application will have to be allowed and is allowed in terms of prayer clauses (b) and (c). 6. The interest of justice also requires that the contesting respondents are compensated on account of the inconvenience caused to them. In my view the interest of justice would be served if the applicants are directed to pay costs of Rs.2,000/- to the respondents within six weeks from date. Civil Application accordingly disposed of. (R.M. SAVANT, J.) (R.M. SAVANT, J.) (R.M. SAVANT, J.)