1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 1114 of 2010 PETITIONERS : 1] Premlata W/o Harinarayan Khatri, Aged about 60 years, Occu. Housewife, 2] Harinarayan S/o Nandlal Khatri, Aged about 73 years, Occu. Agriculturist, Both R/o Pimpri Korde, Tah. Khamgaon, Dist. Buldhana. Through Power of Attorney Holder, Chandrashekhar S/o Harinarayan Khatri, Aged about 27 years, Occu. Agriculturist, R/o Pimpri-Korde, Tah. Khamgaon, Dist. Buldhana. ..VERSUS.. RESPONDENT : Ashok S/o Bhawanrlal Purohit Aged about 61 years, Occu. Agriculturist, R/o Undri, Tah. Chikhli, Dist. Buldhana. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : MARCH 18, 2010. Heard finally Mr. Sachin Zothing, learned counsel for the petitioners. The respondent/plaintiff moved an application (M.J.C. No.13/2006) under Order IX Rule 8 of the Code of Civil Procedure for restoration of Regular Civil Suit No. 72/2004, which was dismissed in default by the trial court. In that application, the respondent/plaintiff blamed his Advocate for 2 not communicating the date to him. The evidence of said Advocate was presented before the trial Court by the petitioner/defendant and that Advocate pointed out that he had communicated relevant date to respondent/plaintiff by U.P.C. and inspite of that, respondent/plaintiff did not choose to remain present. Considering these facts and evidence of learned Advocate, the trial court rejected prayer for restoration of the civil suit. In appeal therefrom, the lower appellate court found that learned counsel for respondent/plaintiff appeared as witness on the request of the defendant, without any summons to him. The said counsel did not appear on scheduled date before the trial court when the matter was dismissed and he did not move any application for adjournment or no instruction pursis. The learned lower appellate court chose not to rely upon U.P.C. produced by said counsel to show that date 30.8.2006 was communicated to the plaintiff. In this background, the lower appellate court has restored the suit. Learned Advocate Mr. Zoting, in these circumstances, has argued that the learned trial court has taken one view of the matter by appreciating the evidence of Advocate and that view could not have been upset by the appellate court merely because second view is possible. He has contended that examination of Advocate for plaintiff as witness is in accordance with law and merely because suit summons was not issued to him, an adverse inference could not have been drawn. Lastly he 3 argues that learned Advocate has produced before the Court a U.P.C. by which communication was forwarded and also the office copy of letter sent to respondent/ plaintiff. He states that said Advocate has deposed that on 30.8.2006, he was required to go to Buldhana and by the time he came back, the matter was already dismissed. It is apparent that the matter has been dismissed on 30.8.2006 when the respondent and his counsel, both were absent. The question whether date 30.8.2006 was communicated to respondent/plaintiff or not, is a debatable issue. Learned counsel for respondent/plaintiff could have remained present before the trial court on 30.8.2006 to protect the interest of respondent/plaintiff as he had not withdrawn his Vakalatnama. If he was not available, he could have asked somebody else to take care of the matter. The learned lower appellate court has also made some comment upon the conduct of said Advocate. But, it is not necessary for this Court to go into that controversy. The order passed by the appellate Court is in the interest of justice and furthers it's cause. The learned trial Court has taken too technical view in the matter. I am, therefore, not inclined to interfere in the matter in writ jurisdiction. Writ Petition is accordingly dismissed and disposed of. No order as to costs. At this stage, Mr. Zoting points out that the petitioner/original defendant is senior citizen, aged about more than 70 years and hence, the matter should be expedited. 4 In the circumstances, the trial court is directed to decide the suit as early as possible and in any case by 31st December, 2010. JUDGE Diwale