: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.632 OF 2010 IN SECOND APPEAL NO.463 OF 1992 Ganpati Kesu Nalawade, Decd., Thru’ Hirabai G. Desai & Ors. .. Applicants V/s. Keshav Sitaram Kulkarni & Ors. .. Respondents Mr. V.M. Thorat for the Applicants. Smt. Anita Gajanan Kulkarni, the daughter- in-law of Respondent No.1 present. CORAM : SMT. NISHITA MHATRE, J. DATED : 30 TH APRIL, 2010. P.C.: 1. The Civil Application has been filed for restoring the Second Appeal which was filed in 1992. The Second Appeal was dismissed for default on 19th November, 2009, after which the present Civil Application has been filed. 2. Smt. Anita Gajanan Kulkarni, the daughter-in- law of Keshav Sitaram Kulkarni, i.e. the respondent No.1 herein, is present in Court and states that because of the old age of her father-in-law, he is unable to attend the matter today. She further : 2 : draws my attention to the fact that the Second Appeal has been dismissed time and again and that the applicants-appellants have taken undue advantage of the indulgence shown by the Court while restoring the Second Appeal on several occasions. 3. In fact, when the matter appeared on board on 30th April, 2007, for restoration before Marlapalle, J., the learned Judge has noted the contentions raised by Keshav Sitaram Kulkarni, i.e. the respondent No.1, who was present in Court on that day. He had opposed the Civil Application for restoration on the ground that an agreement which was executed in 1951 had not been complied with till the day the order was passed by the learned Judge. In the order Marlapalle, J. has also noted that the Second Appeal was dismissed in 2001 and restored again in 2004. Thereafter it was dismissed again in 2006 due to a conditional order. The Second Appeal was restored in 2007 by Marlapalle, J. It was dismissed yet again on 19th November, 2009 because of the default in appearance of the Advocate for the applicants-appellants. : 3 : 4. In my opinion, the applicants-appellants deserve no sympathy from this Court. Marlapalle, J. while restoring the Second Appeal in 2007 has already observed that a sympathetic view was being taken by way of a last chance. The Second Appeal was restored by awarding exemplary costs to the respondent No.1. Costs of Rs.10,000/- was imposed on the applicants-appellants. It appears that this fact has made no difference to the applicants- appellants and the Second Appeal was dismissed yet again. 5. Ordinarily if a matter is dismissed in default on account of the Advocate’s non aappearance, the Court would be inclined to restore the matter on sufficient cause being made out. This is so, therefore, a litigant should not suffer due to the fault of his Advocate. However, in the present case the conduct of the applicants-appellants and/or their Advocate has been incorrigible. The record indicates that they have been persistently negligent in attending the matter and, therefore, no leniency need be shown to the applicants- : 4 : appellants. The imposition of exemplary costs has also not made any difference to the careless and callous attitude adopted by them. 6. The Civil Application is dismissed.