1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6820 OF 2007 Smt.Babubai Khandu Kadam (since deceased) through her legal representative: Machindara Dattatraya Shinde .. Petitioner versus Bhiva Vithoba Kadam (since deceased) through his legal representatives: Kisan Bhiva Kadam & Ors. .. Respondents Mr.Mandar Soman i/by Mr.T.D.Deshmukh for the petitioner. Mr.G.S.Godbole i/by Mr.Ditendra Mishra for respondent Nos.2 and 3. CORAM : A.S.OKA, J. DATE : 1st February 2010. P.C: . Heard learned counsel appearing for the petitioner and the learned counsel appearing for the 2nd and 3rd respondents. Notice has been served to rest of the respondents. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 26th July 2007 passed by the learned District Judge by which an application for condonation of delay in making an application for restoration of the appeal under Rule 19 of Order XLI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) has been dismissed. 2. The husband of the petitioner was the original plaintiff who filed a suit for partition and separate possession. The suit was dismissed in the year 1993. An 2 appeal was preferred before the District Court. On 23rd August 2001 the appeal was dismissed in default as the petitioner and her advocate did not remain present. The present application alongwith application for restoration of the appeal was preferred by the petitioner on 16th March 2006. In the said application it was contended that the petitioner is an old and illiterate lady having no issue. The case is that she had engaged one Mr.B.H.Nikte, advocate in the appeal. Her case is that when she came to Pune on 15th February 2003 and enquired about the appeal, she was informed that the appeal was dismissed for default. It is the case of the petitioner that she engaged another advocate Mr.More for making an enquiry and taking further action. The case of the petitioner is that on 21st February 2003 she met the advocate in the Court premises who obtained her signatures and she was told that the application for restoration will be filed. It is alleged in the application that she met the advocate in the compound of the Court at Pune. She has stated in the application that thereafter when she met the advocate she was told that the application was pending. However, subsequently the petitioner could not locate the said advocate Mr.More. Thereafter, she engaged another advocate and searched the record and it was found that an application for restoration/ re-admission of the appeal was not even filed. Therefore, the present application was made by the petitioner. 3. The learned counsel appearing for the petitioner has taken me through the averments made in the application and the findings in the impugned order. His submission is that the default is on the part of the advocates engaged by the petitioner and therefore the Appellate Court ought to have adopted justice 3 oriented approach and condoned the delay. 4. The learned counsel appearing for the 2nd and 3rd respondents pointed out that the case of the petitioner is that she engaged an advocate by the name Mr.More for filing application for restoration. He pointed out that no particulars of the said advocate and even initials are mentioned by the petitioner in her application. He submitted that there is nothing on record to show that the petitioner made a complaint against the said advocate for non filing application for restoration. He submitted that the Appellate Court was therefore justified in coming to the conclusion that the case made out by the petitioner that she was deceived by the Mr.More, advocate cannot be believed and the Appellate Court has rightly held that the said story appears to be imaginary. He submitted that the petitioner did not step into witness box and she examined her constituted attorney. He submitted that this was a case where the petitioner herself ought to have entered the witness box when such serious allegations were made against the advocates. 5. I have given careful consideration to the submissions. It is not in dispute that an advocate was appointed by the petitioner to prosecute the appeal. The advocate remained absent on 23rd August 2001. In fact the order of dismissal of the appeal records that even on earlier two dates, the advocate was absent. There is nothing on record to show that the Appellate Court had ordered personal presence of the petitioner. Therefore, the petitioner cannot be blamed for advocate’s non-appearance on the dates fixed for hearing of the appeal as the 4 petitioner was not expected to personally remain present at the time of hearing of the appeal after having engaged an advocate. 6. The case made out by the petitioner in the application is that when she came to Pune court on 15th February 2003, she became aware about the fate of the appeal. In paragraphs 3 and 4 the petitioner has stated thus: “3. The applicant is very old, illiterate and helpless lady. She does not have any issue. The applicant immediately engaged an advocate from the Court compound itself for inquiry and for taking further action. The said advocate told the applicant the certified copy of the order of dismissal was required to be obtained and other preceding was require to be filed for restoration of the appeal. Accordingly, the applicant requested the advocate to obtain the certified copy. The applicant was told the name of the advocate bar on 21.2.2003. Accordingly, the applicant came at Pune and met the advocate in bar. The advocate obtained her signatures and told her that he was going to file the restoration proceeding. 4. The applicant states that she recently came at Pune and met the said advocate and inquired about the matter. The applicant was being told that the proceeding is pending. However, for last about 809 months the applicant could not find the said advocate Shri.More. Lastly she met the undersigned advocate expressed all about the matters. The applicant does not have full name or whereabouts of the advocate Shri.More. The applicant also does not have the particulars of the proceedings with her except the xerox copy of said so called proceeding without number etc.” 7. The case made out in the application is that the petitioner being an old and illiterate lady after finding that the appeal was dismissed she engaged Mr.More, advocate whom she met in the Court compound and instructed him to take further action. It is her further case that when she thereafter met the advocate, she was told that the application of restoration was pending and later on she could not locate the said advocate Mr.More. The Appellate Court has found fault 5 with the petitioner on the ground that she has not filed affidavits of both the advocates. The Appellate Court has went to the extent of observing that the said advocates being engaged by her were her agents and therefore the petitioner was answerable to their actions. The Appellate Court observed that the petitioner cannot take undue advantage of mistake of her own lawyer. The said approach of the Appellate Court was completely erroneous. When the petitioner has made serious allegations against her advocates, in normal course, no advocate will co- operate and file an affidavit in suppport of the application. The learned Judge has found fault with the petitioner as she did not file any complaint against the second advocate engaged by her. The specific case of the petitioner is that she met the advocate in the compound of the Court and she could not locate the whereabouts of the said advocate thereafter. Considering this peculiar case, no fault can be found with the petitioner if she did not file any complaint against the advocate. 8. The Appellate Court in paragraph 11 in the impugned order has observed that constituted attorney was examined by the petitioner who himself had given instructions to the advocate for preferring an application for condonation of delay. Considering the peculiar facts and the grounds in the application, this was not a case where adverse inference could have been drawn against the petitioner on account of failure to enter the witness box. 9. Hence, this was a case where the Appellate Court ought to have adopted a liberal and justice oriented approach and condoned the delay. It is true that the 6 concerned respondents will suffer prejudice if the delay is condoned. Therefore, the 2nd and 3rd respondents who have contested the petition can be compensated by directing the petitioner to pay costs of Rs.7500/- to them. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 26th June 2007 is quashed and set aside and Misc.Civil Application No.299 of 2005 is allowed subject to the petitioner paying costs of Rs.7500/- to the 2nd and 3rd respondents. Payment of costs will be a condition precedent. Deposit of the amount of costs with the Appellate Court within a period of six weeks from today will be treated as sufficient compliance. (b) The Appellate Court is directed to register the main application for restoration of the appeal and to decide the same expeditiously. (c) Writ petition is allowed in above terms. (d) The concerned to act upon an authenticated copy of this order. (A.S.OKA,J)