CAS.1555-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION No. 1555 OF 2010 IN SECOND APPEAL No. 326 OF 1985 Javddin Sirajuddin Kokani (Since deceased, represented through the Legal heirs) ...Applicant Vs. Municipal Corporation of City of Nashik ...Respondent *** Mr. P. M. Pradhan, for the Applicant. *** CORAM: V. M. KANADE J. DATE : FEBRUARY 10, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the applicant. This is an application for restoration of the Second Appeal, which was dismissed for want of prosecution by an order dated 19-8-1997. The applicant is the appellant. He had filed Second Appeal, challenging the order passed by the lower Court. Second Appeal was admitted in 1985. An ad-interim relief, granted in favour of the applicant, was then confirmed. When the said Second Appeal was filed, advocate CAS.1555-10 - 2 - Mr. C. A. Phadkar had filed his Vakalatnama and filed an appeal. He, however, expired, and therefore, the applicants appointed advocate Mr. P. M. Pradhan who filed Vakalatnama on 25-1-1995. It is submitted that name of advocate Mr. P. M. Pradhan was not shown on the final hearing board on 19-8-1997 and the said Second Appeal came to be dismissed for default, on the ground that though Court notices were served on the parties, none appeared before the Court. 2. The learned counsel appearing on behalf of the applicant submits that delay of 13 years and 16 days was caused since the applicant was not aware about the order passed by this Court, dismissing the appeal and it was only when the respondent came to the suit property in the year 2000 and started planning Gharkul Yojna, they made inquiries and came to know about the said order. 3. In my view, the submissions made by the learned counsel for the applicant cannot be accepted. There is a gross delay in filing this application for restoration. The delay of 13 years, 16 days, in my view, is not properly explained by the applicants. The applicants have nowhere stated that they had contacted their advocate or kept watch or made an inquiry by sending the letters or met their advocate to find out about the progress of the case. No such averments are made in the application. It is CAS.1555-10 - 3 - unconceivable that the litigant was filed the appeal and obtained the interim order, would not contact his advocate to know about progress of the case for a period of 13 years from the date on which new advocate was appointed by them. If such is the attitude of the litigant, then he does not deserve any kind of sympathy from this Court, nor can it be said that sufficient cause is shown for condonation of delay. 4. On the dismissal of the Appeal, substantive rights were created in favour of the respondents and as such the order attains finality on dismissal of the appeal, on the ground of non-appearance. More than 25 years have passed after the Second Appeal has been filed in the year 1985. In my view, therefore, this is not a fit case where the delay caused in filing the application for condonation and restoration can be condoned. Civil Application is, therefore, rejected. [ V. M. KANADE J.]