An order permitting condonation of a 477-day delay in setting aside a default dismissal. The court accepted the explanation that the Advocate died after fleeing abroad for medical treatment, restoring the testamentary suit to file.
The Notice of Motion for condoning delay and restoring the petition was made absolute.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION
NOTICE OF MOTION NO. 55 OF 2009 IN TESTAMENTARY SUIT NO. 48 OF 2004 IN
PETITION NO. 698 OF 2004
Ramchandra M. Sawant
..Deceased
Shivaji Ramchandra Sawant
..Petitioner/Plaintiff
versus
Dinesh Ramchandra Sawant & Ors.
...Respondents/Defendants
Mr. Suresh Gole i/b. M/s. Gole & Co. for Plaintiff / Petitioner. Ms. Rutuja Ambekar for Defendants / Respondents.
CORAM : DR. D. Y. CHANDRACHUD , J. DATED : 10TH JULY, 2009.
P.C. :
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prior thereto, the matter had been followed up regularly and on 10th August 2005 the Notice of Motion for interim relief had been allowed. The Advocate was residing at Bhole Road, Dadar. It has been stated that after his return from the U.S., the Advocate went to reside at Vapi where his sons lived. He died on 24th June 2008 at Vapi. A copy of the Death Certificate issued by the Department of Health of the Government of Gujarat has been annexed. It has been stated that enquiries were made with the neighbours who were unable to furnish details of the contact address or telephone number at Vapi. Eventually on 14th March 2009 details were obtained and upon contacting the family of the Advocate, the Petitioner was informed that his Advocate had died on 24th June 2008. The court papers were collected on 16th March 2009 and the Managing Clerk of the Advocate informed the Petitioner about the dismissal of the case on 30th November 2007. In these circumstances, the Notice of Motion has been taken out for condoning the delay and for restoring the petition to file.
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obtain information about the petition from the Registry.
1 issue framed by the court
Whether a delay of 477 days in applying to set aside a dismissal in default can be condoned due to the absence of counsel caused by his illness and subsequent death.
Shivaji Ramchandra Sawant
Dinesh Ramchandra Sawant
DR. D. Y. CHANDRACHUD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
