906-IA-1032-22.doc

Sharayu Khot.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION

INTERIM APPLICATION NO. 1032 OF 2022

IN

TESTAMENTARY PETITION NO. 207 of 2010

Naval Gopikishan Rugta

…Applicant

In the matter between

Gopikishan Kishanlal Rungta

…Deceased

Versus

Naval Gopikishan Rugta & Ors.

…Petitioners

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Ms. Dolly Kotwani i/by Vinayak Kumbhar for the Applicant.

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CORAM :R.I. CHAGLA J

DATE :26 August 2022

ORDER :

1.

Heard the learned Counsel for the Applicant/original

Petitioner.

2.

By this Interim Application, the Applicant is seeking

recall of conditional order dated 5th July 2012 passed by this Court

in Testamentary Petition No. 207 of 2010 and for restoration of the

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SHARAYU

PANDURANG

KHOT

Digitally

signed by

SHARAYU

PANDURANG

KHOT

Date:

2022.08.29

19:28:55

+0530

906-IA-1032-22.doc

Testamentary Petition No. 207 of 2010 which came to be rejected for

non removal of office objections by the said conditional order.

3.

The Applicant had filed the Petition for Letters of

Administration to the properties and credits of the deceased

Gopikishan Kishanlal Rungta. The Applicant has stated that due to

certain issues none of the Petitioners could pursue the Petition and

were unaware about the dismissal of the Petition. The Applicant had

contacted his advocate, but the Applicant was informed that the

advocate had permanently shifted to Canada in the year 2015 and

was no longer practicing in this Court.

4.

The Applicant has stated that in the month of December,

2020, the Petitioners checked the status of the matter on the website

of the Court, when they came to know about dismissal of the Petition.

The Applicant has stated that due to lack of knowledge of dismissal

of the Petition, the Petitioners could not take immediate steps to

restore the Petition. Upon receiving legal opinion, the Applicant

instructed his advocate to prepare the present Interim Application.

There was delay due to the advocate representing the Applicant

having permanently shifted to Canada and by virtue of which

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documents could not be obtained in time. Accordingly, the present

Interim Application has been taken out.

5.

I have perused the Interim Application and noted the

fact that the conditional order was passed way back on 5th July 2012

in batch of Testamentary Petitions by which the Petitioners were

given one last opportunity to remove the office objections, failing

which the Petition shall stand dismissed without further reference to

the Court. Upon non-removal of office objections, the Testamentary

Petition came to be dismissed. The present Interim Application has

only been filed on 11th February 2022.

6.

The only explanation given is that the advocate had

permanently shifted to Canada in the year 2015 and is no longer

practicing in this Court, The Applicant has stated that the Petitioners

came to know of the rejection of Testamentary Petition in the month

of December 2020, upon checking of the status of the matter on the

website of this Court. However, considering that the Petition is for

Letters of Administration of the properties and credits of the

deceased, the Petitioners should not be made to suffer in view of his

advocate’

s default in pursuing the matter. Thus, a liberal view has

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906-IA-1032-22.doc

been taken.

7.

However, considering the gross delay in filing the

Interim Application, the Testamentary Petition is being restored,

subject to payment of costs. Hence the following order :-

(i) Testamentary Petition No. 207 of 2010 is restored to

file by recall of the conditional order dated 5th July

2012 insofar as it applies to the present Testamentary

Petition.

(ii) This would be subject to payment of costs of Rs.

10,000/- (Rupees Ten Thousand only) to be paid by

the Petitioners in favour of Deeds for Needs

Foundation, Row No. C/4, Clover Highlands,

Kondhwa, SN. 25/1 To 4, NIBM Road, Pune – 411048.

(iii)Petitioners are granted six weeks t