1 32 caf.3180.11 ndm FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3180 OF 2011 IN FIRST APPEAL NO. 132 OF 1997 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. Rajendra G.Megh i/b Mr.R.O.Pathak for the Applicant. Mr. Ahmed Sayed a/w A.Pujari i/b M/s. Consult Legal for Respondent Nos.1 and 8. CORAM : A.S.OKA, J. DATE : 08 th August, 2011. P.C. . Heard the learned counsel appearing for the Applicant and the learned counsel appearing for Respondent Nos.1 and 8. 2 The learned counsel appearing for Respondent Nos.1 and 8 states that other Respondents have died. The appeal preferred by the Applicant was dismissed for non-prosecution on the basis of the conditional order dated 15 th July, 2003 as Bhatta charges were not paid. There an affidavit filed of the clerk employed by the Advocate for the Applicant at the relevant time in 2 32 caf.3180.11 which it is stated that due to sickness, the clerk could not pay the Bhatta charges. The learned counsel appearing for Respondent Nos.1 and 8 submits that the medical certificate has not been annexed to the said affidavit. He has placed reliance on a decision of the Apex Court in the case of Vedabai alias Vaijayanatabai Baburao Patil Vs. Shantaram Baburao Patil and others [(2001) 9 Supreme Court Cases 106]. He submits that there is negligence on the part of the Applicant. 3 The Applicant had engaged an advocate for preferring an appeal. Accordingly, an appeal was preferred and notice was issued. It was the duty of the Advocate for the Applicant to pay Bhatta charges. When a litigant engages an advocate, he is under no obligation to go to the Registry and pay Bhatta charges. Therefore, in the present case, the default is on the part of the Advocate. The Advocate's clerk has taken the responsibility by filing an affidavit. The contention of the learned counsel appearing for Respondent Nos.1 and 8 is that when the appeal remained pending for such a long time at the stage of admission, it was the duty of the Applicant to make an 3 32 caf.3180.11 inquiry. 4 Suffice it to say that the appeal has been dismissed on account on the default of the Advocate for the Applicant in payment of Bhatta charges. The Applicant cannot be made to suffer for the default of the Advocate or his clerk. Hence, a case for restoration is made out. Application is allowed in terms of prayer clauses (a) and (b) subject to condition that the Bhatta charges will be paid within a period of four weeks from today. In the event compliance is not made within the stipulated time, the order of dismissal will stand. [ A.S.OKA, J ]