1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.28 OF 2009 IN MISC. PETITION NO.14 OF 2006 IN TESTAMENTARY PETITION NO.565 OF 2003 Dr. Adi Homyar Dastoor & Anr. ...Petitioners. Vs. Daryus Soley Panthakey. ...Respondent.. .... Ms.Kavita Shah for Petitioner No.2. Mr. Vinod Thaker for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, J. August 7, 2009. P.C. In these proceedings, the Respondent has prayed that this Court should initiate proceedings against the Second Petitioner for offences under Sections 191, 193 and 199 of the Penal Code. 2. A Petition had been filed for revocation of a probate granted by this Court. The petition was dismissed in default on 23rd June 2006. A Notice of Motion was taken out for restoration of the petition in which there was a delay of more than 477 days. In 2 paragraph 4 and 5 of the affidavit in support of the Motion, the Second Petitioner as deponent stated that the First Petitioner “was not keeping well since about 2005”. The Second Petitioner stated that she was a senior citizen, aged about 65 and was not keeping well herself. Further more, it was urged, that on or about 13th October 2007, the Respondent started carrying out certain work in the property in question and that when enquiries were made with the Respondent, he informed her that a Court order had been passed in his favour. The Second Petitioner stated that she immediately contacted her previous Advocate who informed her that he had not attended the petition and it might have been disposed of. During the course of the hearing, this Court has been informed that even the motion for restoration was, as a matter of fact, dismissed by this Court. However, the contention of the Petitioner is that the averments which were made in paragraphs 4 and 5 of the affidavit in support of the Motion for condonation were false. A reply has been filed in these proceedings by the Second Petitioner and denying that she has made false averments in support of the motion for condonation. 3 3. The contention of the Respondent in support of the Notice of Motion is that the First Petitioner had instituted several proceedings before this Court in 2005 and thereafter, which would show that he was well aware of the litigation and that he had pursued his remedies at various stages. Now, even if that be so, that would not establish that the statement made in paragraph 4 of the affidavit in support to the effect that the First Petitioner was not keeping well since about 2005, was incorrect or false. As a matter of fact, the attention of the Court was also drawn to the fact that the First Petitioner died in September 2006. The second aspect of the matter is the statement of the Petitioner that it was after 13th October 2007 that she obtained knowledge of the fact that the Petition had been dismissed in default when she contacted her earlier Advocate. Reliance was sought to be placed on a certified copy of the Vakalatnama which showed that the earlier Advocate had in fact, given his no objection on 8th August 2007. Even if all these facts were to be taken as they are alleged by the Respondent in support of the Motion, I am of the view that it is not expedient in the interests of justice to initiate proceedings against 4 the Second Petitioner. The Second Petitioner is herself well over 65 years of age. In her Motion for condonation of delay, she had averred that her brother had not been keeping well since 2005 and that it was on or about 13th October 2007 when work was started by the Respondent that she obtained knowledge of the fact that an order has been passed by this Court. It is well settled that every incorrect statement is not necessarily a ground for the Court to initiate proceedings under Section 195 of the Code of Criminal Procedure, read with Section 340. Ultimately, it is for the Court to determine as to whether it is expedient in the interests of justice to do so. Having regard to the totality of the circumstances and the background in which the aforesaid statement was made for the condonation of delay, I am of the view that it would not be expedient in the interests of justice to pursue the proceedings any further. 4. The Notice of Motion is dismissed. .....