1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. WRIT PETITION NO.3839/2008 Smt. Vasudhatai Mahendra Gadhve ..versus.. Shri Sevadas Maharaj Shikshan Sanstha, Kasarkhed through its President and others =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= [Shri V.A. Kothale, Adv. for petitioner] [Smt. A.R. Taiwade, AGP for respdt. No.3] CORAM: J.H. BHATIA, J. DATED : 21.01.2009 1. Heard Shri Kothale, learned Counsel for the petitioner and Smt. Taiwade, learned A.G.P. for respondent No.3. 2. It appears that the petitioner had preferred an appeal before the School Tribunal, Amravati against termination of her services w.e.f. 21.6.2004. That appeal was pending for about three years. On 26.9.2007 it was noted by the Court that, “Appellant is not attending to hearing of appeal. Learned Adv. of appellant submitted that he has contacted to appellant but she is not interested in prosecution.” 2 3. The petitioner had filed an application for restoration of the appeal on 22.4.2008 with application for condonation of delay. According to her, she had come to know for the first time on 3.4.2008 when she had contacted her Advocate that the appeal was dismissed in default and immediately she had filed this application for restoration with application for condonation of delay. The application for condonation of delay came to be rejected. Therefore, she filed this petition. 4. On perusal of the record it appears that the appeal was not dismissed in default because the Advocate for the petitioner was present and if he wanted he could argue the case and the matter could be decided on the basis of the record. On the other hand, the appeal was dismissed for want of prosecution on the basis of the statement to that effect made by the Advocate for the petitioner. 5. Learned Counsel for the petitioner makes a statement that the petitioner had never instructed her Advocate before the School Tribunal that she was not interested and on the contrary, she was waiting for dismissal of that appeal because her services were terminated. If there is a substance in this contention, it must be said that the statement made by Advocate of the petitioner before the School Tribunal on 26.9.2007 that 3 she was not interested in the prosecution was wrong. However, neither in the application for restoration nor in the application for condonation of delay any statement was made that the Advocate of the petitioner had made wrong statement that she was not interested in prosecution. In both applications it was mentioned that the appeal was dismissed in default, which is not correct. 6. In view of the above circumstances, the learned Counsel for the petitioner seeks to withdraw the petition with leave to file fresh application before the School Tribunal for setting aside the order dated 26.9.2007. Learned A.G.P. for respondent No.3 – Education Officer has no objection to the same. Therefore, the writ petition is allowed to be withdrawn with liberty to file fresh application for restoration of Appeal No.46/2004 before the School Tribunal by setting aside the order dated 26.9.2007 within a period of four weeks from this date. The period taken in different litigation from 22.4.2008 till expiry of four weeks from this date shall be excluded for the purpose of determining the period of limitation. JUDGE ssw