1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 188 OF 2006 Asgar Ali Kasim Ghawty. ..Apellant. V/s. Abdul Kadar Shaikh S/o Yusuf. ..Respondent. Mr.R.R.Sharma for appellant. Respondent present in person. Mr.P.S.Dani, appointed as amicus curiae for respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : APRIL 5, 2006. DATE : APRIL 5, 2006. DATE : APRIL 5, 2006. P.C. : P.C. : P.C. : 1. Sole respondent was appearing in person. As he was not in position to assist the court, he was given option that court may provide legal assistance to him, which suggestion was accepted by him. Accordingly, Mr.Dani was appointed as amicus curiae to espouse the cause of the respondent. 2. Heard counsel for the parties. 3. Admit. 4. As short question is involved, appeal is taken up for final disposal forthwith by consent. 2 5. Respondent is present in court and has been informed about the nature of order I propose to pass in the present case. 6. This appeal takes exception to the order passed by the Trial Court dated 7th February, 2006 in Notice of Motion No.311 of 2006 in S.C.Suit No.7046 of 1991. By the impugned Judgment, the Trial Court has dismissed the Notice of Motion taken out by the appellant/plaintiff. By that Notice of Motion, in turn, the plaintiff prayed that the order passed by the Trial Court on 18th January, 2006 dismissing the suit for want of prosecution be set aside and the suit be restored to file to proceed in accordance with the law. Although that order is relied for deciding the present appeal, has not been annexed and included in the paper book filed before this court. The same has been produced by Mr. Dani. In fact Mr.Dani with the assistance of the respondent has produced certified copy of the entire roznama which contains all orders in particular dated 18th January, 2006. It will be apposite to straightway advert to the order dated 18th January, 2006. The same reads thus: ROZNAMA 3 18/1/06 CORAM:H.H.J.Dr.Laxmi P. Rao. 7046/91 Plff.is present.His adv.is absent. Deft. is present. His adv.is absent. K.B.for adv.of the plff. 7046/91 Again called out at 12.55 noon. Plff. is present. His adv.is absent. Deft. is present. His adv.is absent. It is seen from the record that the issues were framed by my ld. predecessor Judge on 27/12/04. Thereafter the case has been adjourned from time to time for filing affidavit of evidence on 6/11/04, 13/12/04, 12/1/05, 8/9/05, 23/11/05, besides several other dates when the board of this court was discharged. However, the plff.does not seem to take the directions of this court seriously. Even this morning when he requested for an adjournment, as usual, he was directed to bring his advocate. There is no explanation forthcoming for the incessant delay caused by the plff. to file his affidavit of evidence.Hence the plff.does not require any sympathy and thereby an adjournment. Hence the suit is dismissed for want of prosecution. Plff.shall pay Rs.1000/- to the deft.as compensatory costs. Suit is removed from the board of this court. 7. From this order it is obvious that the Court showed sufficient indulgence to the plaintiff. On that date when the matter was called out for the first time, the plaintiff was present but his advocate was absent. Accordingly, matter was kept back for the advocate for the plaintiff. When the matter was called out for second time as kept back 4 matter, once again the advocate for the plaintiff was absent. In this backdrop the said order came to be passed. The order also records that the indulgence was shown by the court in the past to the plaintiff. No further indulgence was necessary. I shall advert to this aspect. 8. The appellant took out Notice of Motion No.311 of 2006 for recalling the above said order dated 18th January, 2006. By the impugned Judgment, as mentioned earlier, the Notice of Motion came to be dismissed by the Trial Court. The Trial Court has considered all the relevant aspects of the matter to hold that no sufficient cause was made out for recalling the order dated 18th January, 2006. Besides, it is obvious that the grounds mentioned in paragraph-2 in the affidavit in support of the Notice of Motion was not reason indicated to the Court on 18th January, 2006. That has been given for the first time in the affidavit in support of the Notice of Motion. In any case, the said ground has no causal connection with the non-appearance of the advocate on 18th January, 2006 and for not filing even the affidavit in lieu of examination-in-chief till then. Viewed thus, no fault can be found with the approach adopted by the court below in dismissing 5 the Notice of Motion. 9. I find substance in the argument canvassed by Mr.Dani for the respondent that if the roznama from 20th January, 2004 is to be perused, it will disclose the apathy of the plaintiff in prosecuting the suit. On 20th January, 2004 the plaintiff was present in the court, but his advocate was absent. The matter was adjourned at the instance of plaintiff to 6th March, 2004. On 6th March, 2004, matter was adjourned to 9th March, 2004 as the court was on leave. On 9th March, 2004, matter was adjourned to 1st September, 2004 as court was busy in hearing urgent/other matters. As per assigned date, the matter appeared on 1st September, 2004 but was adjourned to 27th October, 2004. On 27th October, 2004, the plaintiff and his advocate remained absent on which date issues came to be framed and the suit was adjourned to 6th November, 2004. On 6th November, 2004 the plaintiff was present in court but his advocate was absent. The plaintiff informed the court that he has changed his advocate and he will remain present on the next date and also file affidavit of evidence. On this assurance matter was adjourned to 3rd December, 2004. On 3rd December, 2004 advocate for the plaintiff filed his 6 Vakalatnama. On that date, advocate requested for adjournment for filing affidavit of evidence and documents. That request was accepted by the court and the matter was adjourned to 12th January, 2005. On 12th January, 2005 the application was filed on behalf of the plaintiff for adjournment, which application was allowed and matter was adjourned to 15th February. On 15th February, 2005, board was discharged and the matter was adjourned to 4th July, 2005. Similarly, on 4th July, 2005 the board was discharged and the matter was adjourned to 27th July, 2005. On 27th July, 2005 due to heavy rain in Mumbai, it was declared as court holiday. For this reason, matter was adjourned to 16th August, 2005 on which date however, the court was on leave and the matter was adjourned to 8th September, 2005. On 8th September, 2005, the plaintiff appeared before the court but his advocate was absent. By this time, no affidavit of evidence was filed in spite of assurance given to the court. In this backdrop the plaintiff was warned that if affidavit of evidence and documents were not filed before the next date, the suit will stand dismissed on that count. Matter was adjourned to 13th October, 2005. On 13th October, 2005, as the court was on leave, matter was adjourned to 23rd November, 2005. On 23rd November, 2005, the 7 plaintiff was present but as usual his advocate was absent. The court has recorded that the plaintiff has failed to take steps to file affidavit of evidence or documents for over last five and half years as noted in the roznama. The court has also noted that in the past indulgence was shown to the plaintiff but the plaintiff has not availed of the opportunity to file affidavit of evidence. On that date matter was kept back on account of absence of advocate for the plaintiff. When it was called out for second time, once again the advocate was absent. The court has noted that although the matter was kept for recording of evidence/dismissal, request for adjournment was made on behalf of the plaintiff, even affidavit of evidence was not filed. The court nevertheless showed indulgence and adjourned the matter on 18th January, 2006, when ultimately suit came to be dismissed for want of prosecution. 10. Having regard to the material on record, no fault can be found with the conclusion reached by the Court below that no sufficient cause was made out by the appellant for recalling the the impugned order dated 18th January, 2006 and to restore the suit to the file to its original number. As is mentioned earlier, in fact, no explanation has been offered 8 with regard to the absence of the advocate on record on 18th January, 2006, when the said order came to be passed. On this count alone application ought to have dismissed. In that sense, no interference is required in respect of the order which is impugned in this appeal. 11. However, Counsel for the appellant submits that one last chance be offered to the appellant and appellant will abide by all conditions that will be imposed by this court including payment of costs to the sole respondent. It is submitted that for the mistake of advocate, litigant should not suffer. Indeed, this argument should ordinarily be accepted. However, as is mentioned earlier, there is nothing on record to show as to why advocate remained absent on 18th January, 2006. 12. Be that as it may, with a view to give one opportunity to the appellant, in the interest of justice, impugned order as well as order dated 18th January, 2006 are set aside by this order on the following conditions. (a) That the appellant shall pay cost to the sole respondent quantified at Rs.20,000/- 9 within four weeks from today failing which court may proceed on the assumption that the order impugned in this appeal is revived. (b) The appellant undertakes not to seek any adjournment in the suit hereafter on any count. (c) The appellant also undertakes to file affidavit in lieu of examination in chief of the plaintiff witness within four weeks from today. 13. The undertaking given by the plaintiff is accepted. 14. This appeal is allowed on the above terms with the direction to the Trial court to ensure that the trial of the suit is proceeded on day to day basis once it is commenced as the suit pertains to year 1991, so that the same is expeditiously disposed of. 15. The amount of cost shall be paid by the appellant to the respondent directly and acknowledgement be produced before the Trial Court, 10 which will be condition precedent for restoration of the suit. 16. While parting, the Court expresses word of gratitude to Mr.Dani for able assistance given to espouse the cause of the respondent.