KBP 1930-08.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1930 OF 2008 Smt.Shantabai Gangaram Pawar alias Koli and ors. ..Petitioners Vs. Ramchandra Keshavrao Chavan and ors. ..Respondents ......... Mr.S.S.Trivedi i/b.Mr.A.J.Gondwal, for petitioners. Mr.P.M.Arjunwadkar, for respondent Nos.1, 4, 6 to 10. ......... CORAM : A.S.OKA, J.. DATE : 24 th August, 2009. P.C. : 1] Heard learned counsel for the petitioners and learned counsel for the respondents. The office note shows that the petition stands dismissed as against respondent Nos.2,3,12 and 13. 2] The petitioners preferred an appeal under Section 96 of the Code of Civil Procedure, 1908. The said appeal was dismissed for non prosecution. The petitioners applied for restoration of the said appeal along with an application for condonation of delay of 22 days. By the impugned order, the said application has been rejected. 3] The learned counsel for the petitioners invited my attention to the averments made in the application for condonation of delay. It is pointed out that the petitioners had engaged a lawyer to prosecute the appeal and the appeal was dismissed as the lawyer concerned did not appear on the date of hearing. My attention has been invited to the affidavit in support filed by the advocate representing the petitioners. It is submitted that the delay ought to KBP 1930-08.doc 2 have been condoned. The learned counsel representing the respondents supported the impugned judgment and order and submitted that no interference was called for as the delay has not been explained. 4] I have carefully considered the submissions. The appeal preferred by the petitioners was dismissed for non prosecution on 20 th August, 1996. The petitioners had engaged an advocate to represent them in Appeal. Therefore it was not necessary for them to remain present before the appellate court on the dates fixed unless there was a specific order passed to that effect by the appellate Court. The advocate appointed by the petitioners filed an affidavit before the District Court accepting the lapse on his part. He has stated in the affidavit that the petitioners should not be blamed for dismissal of the appeal. 5] While deciding an application under Section 5 of the Limitation Act, a liberal and justice oriented approach is contemplated. In the present case, by preferring an appeal through an advocate, the petitioners have done everything which they could have done. There appears a lapse on the part of the advocate representing them as recorded in the affidavit filed by the said Advocate. In view of what is stated by the learned advocate in the affidavit, a case for condonation of delay is made out. 6] In the circumstances I pass the following order. (a) The impugned judgment and order dated 3 rd January, 2008 is quashed and set aside. (b) Civil Misc. Application No.26/2000 is hereby allowed. (c) The Writ Petition is allowed in the above terms. ( A.S.OKA, J. )