: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2921 OF 2009 WRIT PETITION NO. 2921 OF 2009 WRIT PETITION NO. 2921 OF 2009 Shri Andheri-Gujarati Jain Sangh ... Petitioners v/s Brihanmumbai Mahanagar Palika ... Respondent Mr.G.V.Murti i/by M/s.Murti & Associates for the petitioner. Mr.M.M.Malvankar for the respondent. CORAM : SMT.NISHITA MHATRE J. CORAM : SMT.NISHITA MHATRE J. CORAM : SMT.NISHITA MHATRE J. DATE : 20TH APRIL, 2009 DATE : 20TH APRIL, 2009 DATE : 20TH APRIL, 2009. P.C.: P.C.: P.C.: 1. The petitioners are aggrieved by the order dated 17.1.2009 passed in Miscellaneous Notice No.23 of 2008 in Municipal Appeal No.85 of 1999. By this order, the Additional Chief Judge of the Small Causes Court has dismissed the application made by the petitioners for restoration of the municipal appeal which was dismissed on 17.7.2006. 2. According to the petitioners, the person who was entrusted with the matter before the Small Causes Court, Mr.Parasmal Chunnilal Baradiya, expired during : 2 : the pendency of the appeal on 3.11.2004. Thereafter somebody else was deputed to oversee the matter. He also suffered a heart-attack and was required to undertake angioplasty. In these circumstances it was not possible to attend to the matter according to the petitioners and therefore the appeal was dismissed on 17.7.2006. 2. The learned Judge has dismissed the application on the ground that Mr.Parasmal Chunnilal Baradiya expired on 3.11.2004 and the applicant had undergone the hospitalization in April, 2006, whereas the appeal was dismissed on 17.7.2006. According to the learned Judge, the petitioner ought to have deputed some other person to look after the matter rather than remaining absent on 17.7.2006. The petitioners have stated that one Narendra Zala was appointed by the Trust to look after the legal affairs of the Trust on 1.6.2007. However, his services were terminated on 15.10.2007 and thereafter no steps were taken to file an application for restoration for about 546 days. 3. In my view, although the petitioners undoubtedly are negligent in prosecuting their municipal appeal, it would be in the interest of justice to restore the same on payment of costs to the Municipal Corporation. The : 3 : petitioners have explained sufficiently the reason for their non-appearance on 17.7.2006 and in my view, it would be appropriate to allow the application for condonation of delay and to restore the appeal to file subject to the payment of costs. 4. The petition is, therefore, disposed of by setting aside the order dated 17.1.2009. 5. The Municipal Appeal No.85 of 1999 is restored to file subject to payment of costs of Rs.5,000/- to the Municipal Corporation. Costs condition precedent. Costs must be paid within a week from today. 6. Parties shall remain present in the Court of the Chief Judge, Small Causes Court on 4th May, 2009 at 11.00 a.m.