1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL APPLICATION NO. 11283 OF 2009 in WRIT PETITION NO. 5028 OF 2006 Sham Oil Industries, C-16, M.I.D.C. , Industrial Area, Ajanta Road, Jalgaon – 425 003 (Through Spl. P/A Holder) Shri Shyam Vasudeo Agrawal, Age 45 years, occ. Business, r/o Ganesh Building, 122, Navi Peth, Jalgaon, Dist. Jalgaon ...Applicant VERSUS 1- The State of Maharashra through its Secretary, Electricity Department Mantralaya, Mumbai – 32, 2- The Maharashtra State Electricity Board, through the Superintending Engineer, M.S.E.B., Circle Office, Vidyut Bhavan, M.I.D.C., Jalgaon, Dist. Jalgaon ...Respondents ..... Shri P.P.Chavan, advocate for the applicant Shri Kiran Nagarkar, holding for Smt. V.A.Shinde, AGP for respondent no.1 Shri H.T. Joshi, advocate for respondent no.2 ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 27th November, 2009 2 PER COURT : 1 Rule. Rule made returnable forthwith. By consent of the learned counsel for the respective parties, taken up for final hearing. 2 The applicant/original petitioner has preferred the present application requesting to set aside the order of dismissal of Writ Petition No. 5028 of 2006 dated 27.2.2007 and restore the said Writ Petition to its original position. 3 Learned counsel for the applicant submits that Writ Petition NO. 5028 of 2006 was fixed in the category of due admission at Sr. No.51 on 28.2.2007. However, when the said matter was called out neither the applicant nor the advocate was present; whereas it appears that the advocate for the respondent was present. Hence, the said Writ Petition came to be dismissed on 27.2.2007. 4 Learned counsel for the applicant also states that the advocate for the applicant was busy in other court. Moreover, the petitioner intended to appoint Shri Pravin Chavan as advocate in the said matter and at that time Vakalatnama of earlier advocate 3 Shri Ajay Talhar was cancelled. The applicant tried to contact the advocate Shri Chavan to inform about the courier, but the applicant could not contact him due to death of his senior advocate. Moreover, the applicant sent Vakalatnama by courier, which was received by Shri Chavan on 1.3.2007 and therefore, he could not file Vakalatnama on 28.2.2007, as well as Shri Chavan could not know that the above matter was on board at Sr. No.51 and accordingly, said Writ Petition came to be dismissed in default on the said date. 5 Learned counsel for respondent no.2 and learned A.G.P. for respondent no.1 opposed the present application vehemently and submitted that the applicant has failed to plead and prove the sufficient cause for their non-appearance before the court on the date of dismissal i.e. 27.2.2007 and hence, present application bears no substance and same is devoid of any merits and therefore, same be rejected. 6 Considering the contents of the application and also considering the rival contentions of the parties, it appears that the applicant has explained the reasons for dismissal of Writ Petition No. 5028 of 2006 in default on 27.2.2007 in para nos. 2 and 3 of the present application satisfactorily. Moreover, considering the contents of para nos. 1 to 3, and considering that the application 4 was preferred by the applicant for restoration on 12.3.2006 within period of limitation, it appears that the applicant has shown the sufficient cause for non-appearance of the applicant and his advocate before the court on the date of dismissal i.e. 27.2.2007 and hence, present application is required to be allowed in the interest of justice by setting aside the dismissal order dated 27.2.2007, restoring Writ Petition No. 5028 of 2006 to its original position. 7 In the result, present application is allowed in terms of prayer clause ‘B’ thereof and the order of dismissal dated 27.2.2007 of Writ Petition No. 5028 of 2006 in default stands set aside and said Writ Petition stands restored to its original position. In the facts and circumstances of the case, there shall be no order as to costs. Rule is made absolute in the above terms accordingly. (SHRIHARI P. DAVARE, J.) dbm/ca11283.09