IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8537 OF 2005 M/s.Vijay Fibres Pvt.Ltd. & Ors. ...Petitioners Versus The State Bank of India ...Respondent ...... Mr.S.P.Kanuga with Ms.Anita Bhaktwani i/b Mrs.Sapna N.Nath for Petitioners. Mr.Ajay S.Gadkari for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 8, 2008. AUGUST 8, 2008. AUGUST 8, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Gadkari waives notice for the sole Respondent. 3. As short question is involved, Petition is taken up for final disposal forthwith by consent. : 2 : 4. This Petition under Article 227 of the Constitution of India takes exception to the Judgement and Order passed by the Joint Civil Judge, Senior Division, Kalyan dated 30th September 2005 on Misc.Application No.157 of 2003. By the said Misc.Application, the Petitioners prayed for restoration of Special Civil Suit No.524/1993 as well as Misc. Application No.333/1996 decided by the same Court on 2nd August 1996 and 12th August 1996 be set aside and the said Suit and Application be considered on its own merits. 5. The principal reason which has weighed with the Court below in rejecting the present application being Misc.Application No.157 of 2003 which was filed by the Petitioners on 16th September 2003 to recall the order of 12th August 1996 was that it is barred by limitation. To examine the correctness of the grievance of the Petitioners, record and proceedings was called and on perusal of the relevant Roznama, it transpires that Misc.Application No.333 of 1996 was in fact rejected on 12th August 2003 and not on 12th August 1996. Besides, the Petitioners have asserted that : 3 : they had no knowledge about the said order being passed and came to know for the first time on 18th August 2003. Thus understood, the present Application being Misc.Application No.157 of 2003 was filed well within time and the delay, if any, could be excused in the interest of justice for the reasons mentioned by the Applicants, in particular, that the matter went by default due to mistake of the Advocate. It is well established position that no litigant should suffer for the mistake of the Advocate. At best, the Respondent would be entitled for compensation for having contested the proceedings before the lower Court and again before this Court. That is a matter which can be addressed separately. The fact remains that the Petitioners are entitled for the relief of setting aside order dated 12th August 2003 passed on Misc.Application No.333 of 1996. . The argument of the Respondent that the ex-parte decree has been passed against the Petitioners as back as on 2nd August 1996 cannot be taken into account for considering the subject matter in the present Application being : 4 : Misc.Application No.157 of 2003. It will be open to the Respondent to persuade the lower Court while considering Application No.333 of 1996 to pass such order as may be warranted either of rejection of the said application or of imposing condition on the Petitioners for showing indulgence to the Petitioners to facilitate him to contest the Suit on merits. Those aspects are left entirely open to be considered by the Trial Court uninfluenced by any of the observations in the present order. 6. Accordingly this Writ Petition succeeds to the limited extent of setting aside order dated 30th September 2005 dismissing Misc.Application No.157/2003. Instead Misc.Application No.157/2003 is allowed and as a consequence, Misc.Application No.333 of 1996 shall stand restored to the file of the lower Court which will have to be decided on its own merits in accordance with law, keeping in mind the observations made in the earlier part of this order. 7. This indulgence is shown to the Petitioners on condition that the Petitioners shall : 5 : pay cost quantified at Rs.20,000/- (Rupees Twenty Thousand) to the Respondent to be paid within two weeks from today. On payment of cost, the Misc.Application No.333 of 1996 shall stand restored to the file of the lower Court to be proceeded in accordance with law as aforesaid. Payment of cost referred to above is precondition for showing indulgence to the Petitioners in this Writ Petition. 8. The restored Misc.Application No.333/1996, however, shall be disposed of not later than four weeks from the date on which the Petitioners would pay the amount towards cost to the Respondent as specified earlier. 9. In anticipation that the Petitioners will comply with this conditional order, the parties are directed to appear before the lower Court on 27th August 2008 on which date the lower Court may proceed with the matter and ensure that it is disposed of within four weeks therefrom. 10. Record and Proceedings be returned to the : 6 : lower Court forthwith, if necessary, by deputing special messenger. A.M.KHANWILKAR, J.