1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Misc. Civil Appln. No. 1232 of 2007 Anil G. Podutwar & Ors. Vs. Bhaskarrao C. Lad & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri Amol Mardikar Adv. for applicant. Shri Anil Mardikar Adv. for respondent. CORAM: C. L. PANGARKAR J. Dated: 8 th February, 2008. Heard counsel for the applicants and the respondents. Second Appeal was listed before this Court for admission. It appears from the order passed by this Court on 19.10.07 that 2 the appeal was dismissed as prior to that date the counsel for the appellant had made a request for adjournment on two occasions. On 27.02.07 Shri Mirza learned counsel for the appellant made a statement that the client had taken back the brief and he had no instructions. The matter was therefore directed to be listed before the Court in the next week. However it was not so listed. It came up before the Court only on 19.10.07 on which date Shri Somani holding for Shri Mirza appeared and repeated the statement which was made on earlier occasion. This Court, therefore, found that the appellant was not desirous of prosecuting the appeal and therefore dismissed it for default. Appellant now seeks to restore that appeal to file. The main ground on which the appellant seeks to restore the appeal is that 3 statement as made by the counsel was not correct and he had never taken back the brief. The respondent has filed reply to the application and has denied the contention and has contended that unnecessarily blame is being put on the lawyer and it is easy to put blame on the lawyer. Respondent submits that therefore the application is not bonafide and appeal should not be restored to file. After having heard the learned counsel for the appellant and respondent I find that there is a statement on oath of the client that he had not given any instructions not to appear to the concerned lawyer. This statement on oath could be controverted by the lawyer who had made a statement before the Court only. It is not controverted. The fact is that there is now a statement on oath of the appellant that he had not instructed the 4 lawyer not to appear on his behalf and had not taken the brief from him. One therefore does not know why such statement was made before the Court by the concerned lawyer. If therefore, the appeal is not restored to file it will be the appellant or the litigant who would suffer and not the lawyer. In the circumstances I find that the appeal needs to be restored to file. Appeal is restored to file. List the appeal for admission in the last week of February 2008. The appellant shall pay the costs of Rs.1500/- to the contesting respondent. Costs be paid within a period of two weeks. Learned AGP appears for respondent. JUDGE svk