1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7714 OF 2009 1. Bhagiratabai w/o. Uttamrao Ambhore, Age 76 yrs., Occu. Agri., R/o. Varna, Tq. Jintur, Dist. Parbhani, At present R/o. Someshwarwadi, Pune, Dist. Pune. 2. Subhash s/o. Uttamrao Ambhore, Age 42 yrs., Occu. Labour, R/o. As above. 3. Bharat s/o. Uttamrao Ambhore, Age 40 yrs., Occu. Labour, R/o. As above. ....Petitioners. Versus Dhondiram s/o. Vithalrao Ambhore, Age 67 yrs., Occu. Agri., R/o. Varna, Tq. Jintur, Dist. Parbhani ....Respondent. Shri. M.M. Patil (Beedkar), Advocate for petitioners. CORAM : R.K. DESHPANDE, J. DATE : 28th June 2010. 2 PER COURT : 1. This writ petition challenges the order dated 4.9.2009 passed by the learned Joint Civil Judge, Junior Division, Jintor, rejecting the application for condonation of delay caused in filing an application for restoration of the suit bearing No. 54/2008. 2. Notice for final disposal was issued in this matter on 9th of April 2010. Although the respondent is served, none appears for respondent. Matter is heard finally. 3. Shri. Patil, learned counsel for the petitioners, has urged that the petitioners, who are the original plaintiffs, were residing at Pune and the suit was filed at Jintor and they had engaged advocate Mr. Kawathekar. According to him, the advocate expired on 26.6.1996. The said suit was dismissed for want of prosecution on 15.7.1996. This fact was not within the knowledge of the petitioners/plaintiffs and as soon as they came to know about the fact of dismissal of suit, they preferred an appeal for restoration, accompanied by the application for condonation of delay caused in filing the application for restoration. 4. It is not in dispute that the delay of 11 years and some months was sought to be condoned by filing an application, Exh. 18. The reason put forth was that petitioners/plaintiffs were not aware of the dismissal of 3 the suit and as soon as they came to know about dismissal of suit on 24.7.1997, they have filed the application for restoration before the Trial Court. The Trial Court has considered all the grounds furnished, for explaining the delay caused in filing the application for restoration. 5. The first ground that the applicants had no knowledge about the suit concerned, has been dealt with in paragraph No. 8 of the order, which is reproduced as under :- "8. So far as regards first ground that these applicants had no knowledge of the said suit is concerned, the suit was filed by all these applicants themselves. At the time of filing the said suit applicant No. 1 Bhagirathibai was shown as 54 years old whereas applicant No. 2 Subhash was shown as 19 years old. The suit was filed by the signature of these applicants and this applicant No. 2 was signed as the guardian for this applicant No. 3. Thus, applicant No. 2 and applicant No. 1 was having considerable age of better understanding. It is further case of the applicants that they were asked by their advocate that he would call them whenever their presence would be required. Thus, as they were in touch with their advocate, they had knowledge of the suit. In these circumstances, the case of the applicants that they had no knowledge of the said suit is not at all believable and acceptable." 6. The second ground that the applicants had left village Varna permanently and started residing at Pune for business purpose, has been dealt with in para No. 9, which is reproduced below :- "9. The second ground that these applicants left village Varna permanently and went to city Pune for business purpose is concerned, these applicants have made too vague statements in this behalf. They have not given the specific period which is almost 4 material showing exactly when they went at Pune. Moreover, in this behalf, the defence raised by the non-applicant is that, this applicant No. 2 was attending this very court till the year 2000 as an informant and prosecution witness in criminal case bearing R.C.C.No. 19/1996. A certified copy of judgment of the same is also produced on record at Exh. 35. On perusal of the copy of the said judgment, it appears that in para no. 5 of the said Judgment, there is reference of applicant no. 2 Subhash Uttamrao Ambhore that he had filed the said information of the crime with the police and he had given his oral evidence in that case. The said criminal proceeding is disposed of on 20/1/2000. Thus, it is quite possible that being an informant, this applicant No. 2 Subhash must have attended the matter till the year 2000 and thus, he was coming in this Court till the year 2000. The applicant No. 2 Subhash is taking lead in this proceeding also as his affidavit is filed in support of the application for condonation of delay. Admittedly, the suit is dismissed in default on 15/7/1996. Therefore, this applicant had occasion to get the knowledge of the status of this suit since 15/7/1996 till the year 2000. He had occasion to meet his advocate Shri. Kothekar and to get the date and knowledge of the stage of the suit. However, he seems to be done nothing & acted carelessly. Therefore, this ground is also not believable and acceptable." 7. So far as the ground that the advocate of the petitioner has been expired on 26.6.1996 is concerned, it has been dealt with in para No. 10 which is reproduced below :- "10. So far as regards the ground that the applicant's advocate had told them that he would call them whenever their presence would be required is concerned. It is the defence of the non- applicant that the advocate of the plaintiff died on 26/6/1996 nevertheless, the applicant did not try to get knowledge of their suit since them. Such statement appears in written notes of argument. Though no further evidence is led in this behalf, the same fact was not disputed even during the 5 arguments for the applicant. Thus, if the advocate of the applicants died on 26/6/1996, it was the prima duty of the applicants to get knowledge of the stage of their suit by appointing new advocate in this behalf. Moreover, applicant No. 2 Subhash as was attending this court till the year 2000 as observed earlier, he must have had knowledge of the death of his advocate. Therefore, at least in that situation, he ought to have engaged the another advocate and ought to have got knowledge of the stage of the suit. However, the applicants have done nothing diligently to get knowledge of the stage of their suit. Therefore, this ground is also not believable and acceptable and the same is not reasonable one." 8. In para 11, the finding is recorded as under :- "11. It is one of the ground of the applicants that they got knowledge of such dismissal order by a letter dated 24.10.1997 of this Court. However, it is their ground that they got knowledge of this letter in the month of March,2008. However, there is not a single word in the application for condonation of delay or in the supported affidavit of it to show as to how they got knowledge of the same in March 2008. But, it has been stated in the application of restoration petition that after death of defendant No. 3 Uttamrao, when they opened a trunk in March 2008, they got the said notice. Uttamrao died on 11.9.2006, however, there is no mention as to why tow years were required to them to open such trunk. Thus, this also cannot be considered as reasonable and sufficient ground to file such application for condonation of delay." 9. The Trial Court has considered various judgments of the Apex Court and has ultimately held that the applicants have failed to make out sufficient and reasonable cause to condone the delay. The application is, therefore, rejected. 6 10. In view of the fact that the discretion exercised by the Trial Court is found to be judicious one and supported by the reasons and judgments of Apex Court, I do not think that the case is made out for interference under Article 226 and 227 of the Constitution of India. The petition is, therefore, dismissed. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp7714.09