1 CAS 1580 OF 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1580 OF 2009 IN CIVIL APPLICATION (ST.) NO. 19717 OF 2003 IN CIVIL APPLICATION NO. 1929 OF 2010 IN SECOND APPEAL NO.234 OF 1993 Sheikh Vazir Ahmad Mulla since deceased through his LRs. Sheikh Nazir Ahmad Sheikh Vazir and Ors. ...Appellants/ Applicants vs. Bansi Kalu Sangamnere since deceased through his LRs. Bhaskar Bansi Sangamnere & Ors. ...Respondents ----- Mr.N.V. Walawalkar,Senior Counsel i/b. Mr.Vilas B. Tapkir for Applicants Mr.U.B. Nighot for Resondent Nos.1B & 3 B (in CA 1929 of 2010) ------- Mr.N.V. Walawalkar,Senior Counsel i/b. Mr.Vilas B. Tapkir for Applicants Mr.U.B. Nighot for Respondent Nos.1B and 3B, 1a, 1b, 2a, 2b, 2c(i), 2d(i), 3a to 3h, 5a to 5c, 7a to 7e and 8b (in C.A. No.1580 of 2009) ----- CORAM: V.M. KANADE J. DATED: 3rd May, 2011 2 CAS 1580 OF 2009 P.C. 1. Heard the learned counsel appearing on behalf of the Applicants and Respondents. 2. This civil application is filed for restoration of the Second Appeal which was dismissed on account of a conditional order passed by this court dated 4.3.2002. 3. It is submitted that the Applicants became aware about the order of dismissal only in the year 2010 after they noticed that the names of the Respondents were shown in the 7x12 extract and, therefore, there is a delay of 7 years and 109 days in filing this civil application. It is submitted that on 4th March, 2002, a common order was passed in a group of matters directing the Appellants to remove the objections within 8 weeks, failing which it was stated in the order that the appeal would stand dismissed for want of prosecution. It is submitted that their erstwhile advocate on record was possibly not aware of this order which is evident from the fact that he prepared a civil application for bringing the legal heirs of Appellant Nos.1 and 2 on record and the same was affirmed on 9.6.2003 and was filed on the same date. However, the said civil application was also dismissed for want of prosecution in 2007 It is submitted that the Applicants relied on the information given by their 3 CAS 1580 OF 2009 advocate about the pendency of the second appeal and they relied on his assurance given by the advocate about pendency of the second appeal. It was submitted that , therefore, they are diligent in pursuing the matter. It is submitted that the Applicants are residing in Nasik District and for the error committed by the advocate, the Applicants should not be made to suffer. 4. On the other hand, the learned counsel for the Respondents has vehemently opposed this application. It was submitted that the record indicates that no steps were taken by the Applicants herein to find out about pendency of their case. It was submitted that even the civil application filed, was dismissed for want of prosecution in the year 2007 and they did not keep track of the appeal and, therefore, this was not a fit case for condonation of delay and for restoration of the Second Appeal. 5. In my view, after having heard both the counsel, it does appear that even the advocate on record was not aware of the conditional order, which was passed by this Court in a group matters on 4th March, 2002. This is evident from the fact that even after the second appeal was dismissed for want of prosecution, he thereafter filed the civil application for bringing the heirs on record on 9.6.2003. If the advocate had been aware about the 4 CAS 1580 OF 2009 dismissal of the second appeal on account of the conditional order, he would have applied for restoration of the second appeal at that stage itself. Since the advocate himself was not aware, there was no question of the advocate informing the Applicants about dismissal of the second appeal. It is a common knowledge that second appeals remain pending for a long time and they are transferred to sine di list. Even as of today, second appeals of the years 1992 are still pending for final disposal. Taking these facts and circumstances into consideration, the delay caused in filing this application will have to be condoned. The Apex Court and this Court in several cases have held that for the fault of advocate, the litigant should not be made to suffer. It is quite probable that the Applicants' advocate may have informed the applicants that the main appeal is still pending for final disposal. The advocate on record was also unwell and due to old age has not coming to the court at least for last 4 to 5 years. Moreover, no prejudice would be caused to the respondents since no interim order has been passed in the second appeal and they have succeeded in the Lower Appellate Court and an injunction is granted in their favour and they are in possession of the suit property. Apart from that, the only objection which was not removed, was that the paper 5 CAS 1580 OF 2009 book was not prepared and the decree forms were not filed. Normally, under the Appellate Side Rules, the Second Appeal paper book has to be prepared by the office. However, the Learned Single Judge by the said order dated 4th March, 2002 has passed the following order. CORAM: A.M.KHANWILKAR J. DATED: 4th March, 2002 “Printing dispensed with, Appellant(s) to supply requisite copies of the paper-book in accordance with Rule 10(iii) of Chapter VII read with Rule 2 of Chapter IX of the Bombay Court Appellate Side, rules, 1960. However, if the party insists and/or Roznama pleading and categories and their replies if any are necessary will be required time of hearing of the appeal, only then those documents be included in the paper-book. In all other cases inclusion of those documents are dispensed with the paper-book as aforesaid be supplied within eight weeks failing which appeal to stand dismissed for non-prosecution without further reference to the court. Appellant(s) to remove other office objection(s), if any within eight weeks from 6 CAS 1580 OF 2009 today, failing which the appeal will stand dismissed for non-prosecution without further reference to the court.” 6.It is pertinent to note that no application was filed by the applicants herein for dispensing the printing of the paper book by the office. But it appears that in order to expedite the process of hearing of the second appeal, the said order appears to have been passed. Under the Appellate Side Rules, Chapter VII, Rule 10 (iii) provides that the Appellant has to supply the copies of typed paper book where printing is dispensed with. Under Chapter VII, Rule 10 (i) provides that where paper-book should be printed. Rule 10 (ii) prescribes that where printing shall be dispensed with. Rule 10 (ii) reads as under: “(ii) Where printing shall be dispensed with.- Printing shall be dispensed with in appeals from orders, appeals arsing out the Hindu Marriage Act and Special Marriage Act, and expedited appeals other than First Appeals and with the leave of the court in expedited First Appeals.” In the present case, it appears that no application was made for dispensing with the printing of the paper- book by the office. However, the Court had passed an 7 CAS 1580 OF 2009 order in the group of mattes. It is possible, therefore, that the advocate also may be under the impression that since the Second Appeal paper-book is not printed, the second appeal was pending in this Court. 7.Taking an over all view of the matter, therefore, the delay caused needs to be condoned and the second appeal is, therefore, restored to the file. Civil Application is disposed of. However, the Applicant to pay the cost which is quantified at Rs.10,000/- , to be paid within six weeks from today to the Respondents' counsel. 8.For the same reasons given, the Civil Application No.1929 of 2010 for bringing heirs of Appellant Nos.1 and 2 is allowed and disposed of. The Civil Application (St) No.19717 of 2003 is filed within time and, therefore, it is allowed in terms of prayer clause (a) and disposed of. 9.Amendment to be carried out on or before 15th of June, 2011. Place the Second Appeal on the final hearing board on 15th June, 2011. (V.M. KANADE J.)