1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.6 OF 2010 Sk.Babu alias Bagulminya S/o. Sk.Nanhu, Age-45 years, Occu-Agril, R/o.Himayatnagar, Tal.Himayatnagar, Dist. Nanded APPLICANT VERSUS Babusingh alias Rajendrasingh S/o.Ratansingh Chavan, Age-57 years Occu-Agriculturist, R/o.Himayatnagar, Tq.Himayatnagar, Dist. Nanded RESPONDENT Mr.G.N.Chincholkar, learned counsel for applicant. Respondent absent even though duly served. (CORAM : A.V.POTDAR, J.) DATE : 08/04/2010 PER COURT : 1. By the present AO, the appellant has approached this Court, challenging the order passed by the Ad-hoc District Judge-1 Nanded on RJE No.27/2007, which came to be rejected on 14/11/2009. 2. Considering the submissions across the bar, it appears that this RJE No.27/2007 was filed on behalf of appellant, who was also 2 appellant in Reg.Civil Appeal No.181/2003, on the file of District Judge-1 Nanded, who had dismissed the appeal for default on 18/01/2007. 3. Inspite of service in this AO, respondent preferred not to appear before the Court and not participated in the hearing of this AO. Perusal of the observations in the impugned order, particularly in para no.2 and 3, it appears that the appellant was not diligent in prosecuting RCA No.181/2003 on the file of District Judge-1 Nanded, which was preferred against the decree passed in RCS No.12/2001, dated 23/09/2003, which was filed for possession of suit property. 4. The main grievance is that on the date when RCA was dismissed, neither appellant nor his counsel was present before the Court, at the time of final hearing. According to learned counsel for appellant, in the Appellate Court, it is not expected that the appellant to remain present, but it is the duty of the counsel to remain present and do the needful. At this juncture, it is to be noted that, for the fault of counsel or advocate, the litigant must not suffer. No doubt, the appellant was not diligent in prosecuting the RCA, pending on the file of District Judge-1, Nanded. At the same time, here the respondent is also not diligent to oppose the appeal preferred by the appellant and inspite of due service, remain absent. Considering the facts that the appeal came to be dismissed about the recovery of immovable property for the fault of counsel, bearing in mind the principle above quoted, ‘ for the fault of counsel or advocate, litigant 3 must not suffer’, without touching the merits of regular civil appeal, this appeal against the order impugned dated 14/11/2009 to be allowed on payment of costs. Hence order : O R D E R 1. AO is hereby allowed. 2. The order passed in RJE No.27/2007, dated 14/11/2009 is set aside. 3. Reg.Civil Appeal No.181/2003 is restored to the file of District Judge-1, Nanded on payment of costs in the sum of Rs.500/-, to be deposited before the First Appellate Court within the period of 15 days from the date of this order. Failing which, the appeal RCA No. 181/2003, which is today restored, will automatically stands dismissed. 4. Parties to appear before the First Appellate Court on 30/04/2010. In case respondent in this AO, who is also respondent in RCA No.181/2003, will not appear before the First Appellate Court, then to issue notice to the respondent, and then the appeal to be disposed of within the period of 6 months from the date of appearance of the parties before the First Appellate Court. 5. AO stands disposed of accordingly. 6. Parties to act on the authenticated copy of this order. (A.V.POTDAR, J.) khs/APRIL 2010/ao6-10