: 1 : J IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1055 OF 2009 Mahadu Khandu Ajab & Anr. .. Appellants V/s. Sakhubai Khandu Ajab & Ors. .. Respondents Mr. V.B. Tapkir for the Appellants. Mr. Mandar Soman i/b. Mr. T.D. Deshmukh for Respondent Nos.2(A) to 2(D) and 3 to 7. CORAM : SMT. NISHITA MHATRE, J. DATED : 13 TH JANUARY, 2010. P.C.: 1. The Appeal from Order has been preferred against the order dated 5th July, 2008, passed by the District Judge, Pune, in Miscellaneous Application No.845 of 2004, by which the application filed by the appellants herein for restoration of the Appeal has been dismissed. 2. A Regular Civil Suit No.181 of 1989 was filed by the respondents herein before the Civil Judge, Junior Division, Ghodegaon, for partition and separate possession of certain property. The Suit was partly decreed on 14th March, 2000. Aggrieved by that order, the appellants preferred Civil Appeal : 2 : No.432 of 2000 before the learned District Judge on 28th October, 2004. On 14th October, 2004, the appellants sought an adjournment as their Advocate was unable to attend the matter. The Court granted the adjournment on payment of costs of Rs.200/- to the respondents. The matter was then adjourned to 28th October, 2004. On that day, the appellants could not arrange to pay the costs and their application for payment of costs at a later date was rejected. An application was also filed for an adjournment by the appellants contending that their Advocate on record was unable to attend the matter since he had to attend the funeral of a relative. Both the applications were rejected and the Civil Appeal was then dismissed for default on the same day. 3. The appellants, therefore, filed Miscellaneous Application No.845 of 2004 on 5th November, 2004 for restoration of the Civil Appeal No.432 of 2000. That application was opposed by the respondents. It appears that the evidence was led by the parties and thereafter on 5th July, 2008, the Miscellaneous : 3 : Application No.845 of 2004 was rejected and hence the present Appeal from Order. 4. By the order of 28th October, 2004, the Appellate Court had rejected the application for adjournment by recording that it was the seventh adjournment application filed by the appellants. The Court also recorded that despite its earlier order permitting the Civil Appeal to proceed on payment of costs, the appellants had failed to pay the same. The Appellate Court, therefore, was of the view that the appellants were not interested in prosecuting their Appeal and dismissed the application. The reason stated in the order dismissing the Appeal is that the appellants had not deposited the costs as directed on the earlier date. While rejecting the Miscellaneous Application, the Court has not accepted the contention of the appellants that it was due to the negligence of their Advocate that there was a delay in prosecuting their Appeal. The Court has held that these contentions were raised only because the learned Advocate had passed away and could not repudiate those allegations. : 4 : 5. However, the impugned judgment also reflects the fact that the adjournment applications were filed on behalf of the appellants only on account of their Advocate not being available for one reason or the other. The Court has also recorded that the Advocate sought adjournments continuously for some reason or the other. It is now well settled that a litigant should not be penalized for the negligence, if any, of their Advocate. Once the litigant entrusts his case to an Advocate, the latter is expected to be diligent and ensure that his client is not denied justice. It is apparent in the present case that the slackness and negligence of their Advocate has prejudiced the appellants. In these circumstances, in my opinion, it would be appropriate to set aside the impugned order passed on 5th July, 2008, on payment of costs. 6. Accordingly, the impugned order dated 5th July, 2008, passed by the District Judge, Pune, in Miscellaneous Application No.845 of 2004, is set aside on payment of costs of Rs.5,000/- to the : 5 : respondents. The costs shall be paid within a period of four weeks from today as a condition precedent for the Appeal being heard. 7. It is made clear that if the costs are not paid within the stipulated time, the earlier order passed on 5th July, 2008, will revive. 8. The Appeal shall be disposed of as expeditiously as possible. .......