1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Civil Application (CAO) No. 738 of 2010 in Misc. Civil Application St. No.8201/2010 in Writ Petition No. 934 of 1997 (d) Shiopalsingh Mohansingh Bais VERSUS State of Maharashtra, through Secretary, Ministry of Edu., Mumbai and others - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. M. P. Jaiswal, Advocate for the the applicant Mr. A. M. Deshpande, A.G.P. for non-applicant no.1 Mrs. M. P. Munshi, Advocate for non-applicant nos.2 & 3. CORAM : SMT. VASANTI A. NAIK AND PRASANNA B. VARALE, JJ. DATE : JUNE 17, 2011. Heard Mr. M.P. Jaiswal, the learned counsel for the applicant, Mr. A. M. Deshpande, the learned Assistant Government Pleader for non-applicant no.1 and Mrs. M. P. Munshi, the learned counsel for respondent nos.2 and 3. By this civil application the applicant seeks condonation of delay of 6 years and 208 days in filing an application for restoration of the writ petition. It appears from the application that the applicant/petitioner had filed the writ petition claiming that the age of retirement was 60 years, but he was wrongfully retired at the age of 58 years. The writ petition was filed in the year 1997 and this Court admitted the petition and granted stay. Since, the stay was granted, the applicant/petitioner rendered services till 60 years. It appears that the writ petition came to be dismissed 2 in default on 04/9/2003 as the counsel for the applicant/ petitioner was not present in the Court when the matter was called for hearing. It is the case of the applicant that in the year 2003, since his wife was seriously ill, he had to shift to Bidar (Karnataka) where one of the sons of the applicant was residing. It is the case of the applicant that while proceeding to Bidar, the applicant/petitioner had submitted an application to the Post Master to re-direct his letters on the address of Bidar. Thereafter, the wife of the applicant took treatment for the period of five years at Bidar, but due to difference of opinion between the wife and daughter-in-law of the applicant, the applicant returned to his native place in December, 2009 along with his wife. When the applicant approached his counsel on 08/2/2010, the counsel informed the applicant that the matter was dismissed in default on 04/9/2003 and the said fact was informed to the applicant. The applicant states in this application that the applicant had however, not received the communication issued by his counsel to the applicant. Immediately on getting the knowledge about the dismissal of the matter, the present application has been filed by the applicant. The application is strongly opposed by the learned counsel for respondent nos.2 and 3. It is submitted on behalf of respondent nos.2 and 3 that the applicant has not mentioned the delay in the application. It is submitted on behalf of respondent nos.2 and 3 that it is a well settled position of law that in an application for condonation of delay, it is necessary for the applicant to explain the delay of each and every day. According to the learned counsel for 3 respondent nos.2 and 3, such is not the case here. The learned counsel for respondent nos.2 and 3 sought for the dismissal of the application. On hearing the learned counsel for the parties and on perusal of the application and the reply filed thereto, it appears that the applicant has satisfactorily explained the delay of 6 years and 208 days in filing the application for restoration. The principles of law that each and every day’s delay has to be explained, cannot be applied to the facts of this case as the applicant had absolutely no knowledge about the dismissal of the writ petition on 04/9/2003, till 08/2/2010 when the counsel for the applicant informed the applicant about the dismissal of the matter. Apart from the fact that there is sufficient cause for condoning the delay, it is necessary to note that the applicant/petitioner has already served till the age of 60 years in view of the stay granted by this Court in the writ petition and it is informed to this Court by the learned counsel for the applicant that some other cases where similar issue was involved, have been allowed by this Court. The judgment reported in 1987 II C.L.R 92 (Collector, Land Acquisition Anantnag and another .vs. Mst. Katiji and others) and relied on by the learned counsel for the applicant, is helpful to the case of the applicant for seeking condonation of delay. Hence, for the reasons aforestated, the civil application is allowed and disposed of Misc. Civil Application (St.) No. 8201 of 2010 Heard Mr. M.P. Jaiswal, the learned counsel for the applicant, Mr. A. M. Deshpande, the learned Assistant 4 Government Pleader for non-applicant no.1 and Mrs. M. P. Munshi, the learned counsel for respondent nos.2 and 3. The learned counsel for respondent nos.2 and 3 has strongly opposed the prayer made in this civil application. However, for the reasons stated in this civil application and also because the client should not suffer for the mistake of his counsel, the prayer made in this civil application is granted, subject to the payment of costs of Rs.500/- (Rupees Five hundred only) in the High Court Legal Services Sub Committee, Nagpur, within a period of two weeks. The Misc. Civil Application is allowed in the aforesaid terms and disposed of. JUDGE JUDGE Diwale