1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.418 OF 2010 Vishnu Bhanudas Durunde and another ..PETITIONERS -VERSUS- Laxman Vithal Borade ..RESPONDENT ..... Mr.V.D. Salunke, advocate for petitioners. Mr.S.B. Talekar, advocate for respondent. ..... (CORAM : V.R.KINGAONKAR,J.) DATE : 11 st August, 2010. PER COURT : 1. By this Petition, the petitioners challenge the dismissal of their application (Misc. Civil Application No.118 of 2005) filed in the appeal for restoration thereof. 2. The petitioners had filed appeal bearing Regular Civil Appeal No.39/1994. The appeal was fixed for final hearing on 14.06.2001. It appears that the paper book was ready and the petitioners had taken due steps for preparation of the paper book for depositing the necessary paper book charges. According to the petitioners, they could not receive communication from their counsel about the date of hearing. They were unable to attend the 2 Court on the date, which was fixed. Since their Advocate remained absent, the appeal wad dismissed. 3. They contended that due to mistake of the counsel, they should not be subjected to injustice. The first Appellate Court dismissed the application on the ground that the Affidavit of the concerned counsel appearing for the petitioners was not filed on record so as to indicate that the petitioners were not informed about the date of hearing. 4. Having heard the learned counsel for the parties and on consideration of the impugned order, it is amply clear that application filed by the petitioners was not duly considered on merits but was rejected only for the reason that there was no affidavit of the counsel, who had remained absent on the date of hearing. The first appellate Court lost sight of the fact that the petitioners were not likely to gain any advantage by remaining absent on the date of hearing. So also, it has been overlooked that the petitioners did deposit the paper book charges with intention that their appeal be ready and ripe for hearing. The counsel for the petitioners had duly relied upon the case of "Rafiq V/s Munshilal" {1981 SCC (2) 788}. The Hon'ble Apex Court held time and again that the litigant shall not be allowed to suffer due to mistake of 3 counsel. The application for restoration was filed without any malfides. It is common knowledge that in Appellate Court, the litigants are not required to personally appear and it is the duty of the counsel to attend the matter. If the counsel for petitioners had remained absent due to lack of instructions then he should have got himself discharged by passing appropriate purshis. That was not done. Considering the background, facts and circumstances, it will have to be said that the impugned order is quite unsustainable, and therefore, is liable to be interfered with. 5. In the result, the Petition is allowed. The impugned order is set aside. The appeal shall be restored to its original position, if the petitioners will pay cost of Rs.1,500/- to the respondent in the first Appellate Court within a period of four weeks. The Petition is disposed of accordingly. (V.R.KINGAONKAR) JUDGE gas/wp418.10