1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 981 of 2009 IN WRIT PETITION NO. 5200 of 2007 Vinodkumar Baldevsingh Saigal ....Applicant v/s. Nargis Majid Oomerbhoy & anr. ....Respondents Shri Zuben Bahram Kamdi i/b. Milan Bhise & co. for the applicant. Shri Z.A. Jariwala i/b Thakur Jariwala & Assoc. for respondent no.1. CORAM:- A.M.KHANWILKAR, J. DATED:- August 28, 2009. P.C. Heard Counsel for the parties. 2. Counsel for the Applicant submits that Respondent No.2 has been duly served. Affidavit of service to that effect has been filed. The affidavit indicates that Respondent No.2 refused to accept service. That will have to be treated as good service. In the circumstances the application proceeds further. 3. Essentially, two reasons have been stated in the Application to recall the order dated 20th February, 2009. Firstly, that the Advocate Mr. Milan Bhise was unwell on 29th February, 2009 as a result of which the matter proceeded exparte against applicant in the Civil Application (respondent no.1 in Writ 2 Petition). The second reason stated is that the Civil Application No. 1227/2008 was expected to be heard alongwith Writ Petition which was the earlier order passed by the Court. In so far as the second reason is concerned, I am in agreement with the Counsel for the Respondent-Writ Petitioner that the same is untenable in as much as the applicant-respondent no.1 in the Writ Petition was well informed that the Civil Application No. 1227/2008 would proceed for hearing on 20th February, 2009 which fact is recorded in order dated 6th February, 2009. That order was passed in the presence of Advocate for the applicant- respondent no.1 in Writ Petition. Thus, the said ground made out in the application cannot be countenanced. Neverthless, the fact remains that on 20th February, 2009, the Advocate on record for the Applicant could not remain present in Court due to his illness. It is well established position that the litigant should not suffer for the mistake of his Advocate. Invoking that principle, the applicant is entitled for relief as claimed in this application. Counsel for the Respondent No.1 Writ-Petitioner further submits that no fruitful purpose will be served by re-calling the order dated 20th February, 2009 since the Writ- Petitioner-plaintiff has already carried out amendment in the plaint in terms of the order dated 20th February, 2009. This objection does not commend to me; for the simple reason that even if amendment has been carried out, the same will be subject to the outcome of the proceedings before this Court. For the present, I am inclined to accept the request of the applicant-Respondent No. 1 in the Writ Petition to afford hearing to the applicant before passing any order on Civil Application No. 1227/2008 and consequently passed in Writ Petition No. 5200/2007. 4. Accordingly, order dated February 20, 2009 passed by me is recalled and instead Civil Application No. 1227/2008 as well as Writ Petition No. 5200/2007 3 are restored to the file to its original number to be proceeded on merits in accordance with law. It will be open to the parties to apply before the appropriate Bench for listing of the said Writ Petition and Civil Application expeditiously. A.M.KHANWILKAR, J