1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL APPLICATION NO.8703 OF 2008 IN CIVIL APPLICATION STAMP NO.4266 OF 2008 CONTEMPT PETITION NO.263 OF 2004 IN WRIT PETITION NO.1499 OF 2004 Mohd. Khalliloddin s/o Mohd. Zainoddin and another ... APPLICANTS VERSUS Mohd. Zaiuddin s/o Mohd. Niazoddin & ors. ... RESPONDENTS ..... Shri J.R. Shaikh, Advocate for the applicants Shri R.R. Mantri, Advocate for R.No.1 (absent) Shri V.S. Panpatte, Advocate for R.No.2. ..... CORAM : S.P. DAVARE, J. DATED : 23rd June, 2009. ORAL ORDER : 1. Perused. 2. The applicants/ petitioners have preferred the present application 2 to condone the delay of 491 days in filing the accompanying Application for restoration of Contempt petition No.263/2004. 3. The applicants submit that the applicants had preferred Contempt Petition No.263/2004 which came to be dismissed in default due to absence of the lawyer on 19.9.2006. The applicants submit that on enquiry with the Advocate, they were informed about the dismissal of the said contempt petition and were also advised to prefer application for restoration. Hence, the applicants immediately rushed to Aurangabad and preferred Civil Application No.2286/2007 for restoration of Contempt Petition No.263/2004. However, unfortunately, even the said application for restoration also came to be dismissed in default on 30.3.2007. 4. The applicants submit that, dismissal of their application seeking restoration i.e. Civil Application No.2286/2007 was communicated to them by their Advocate on 11.2.2008, when the applicants called upon the Advocate to enquire about the status of their matter. The Advocate also informed them on 14.2.2008 that their Civil Application seeking restoration also has been dismissed in default. Hence it is the contention of the applicants that they immediately rushed to the High Court and after obtaining no objection from their previous Advocate, engaged another Advocate. The applicants further submit that, all along they were under the impression that Civil Application No.2286/2007 was pending for consideration with the prayers for restoration. 3 Hence, the delay was caused in preferring the present Civil Application, which is not intentional and deliberate and same occurred due to inadvertence of their Advocate. It is submitted that the litigants should not suffer for the mistake of the Advocate and there right of claiming salary is involved therein. Hence, the applicants pray that the present application be allowed in the interest of justice. 5. At the outset, the applicants are not the residents of Aurangabad but they are residents of Rahmatnagar, Taluka and District Nanded and the Contempt Petition No.263/2004 filed by them was dismissed in default on 19.9.2006 since their Advocate remained absent before the Court on the said date. Thereafter, on receipt of knowledge of the said dismissal, they rushed to Aurangabad and filed application for restoration i.e. Civil Application No.2286/2007, but same also came to be dismissed in default on 30.6.2007. Upon getting knowledge of the said dismissal, the applicants rushed to the High Court and obtained certified copies and changed the Advocate and filed the present Civil Application for condonation of delay and accompanying Civil Application for restoration of Contempt Petition No.263/2004. In this exercise, the delay of about 491 days occurred and apparently it is not deliberate and wilful and same appears to have been caused because of inadvertence and, therefore, the said delay is required to be condoned in the interest of justice to do the substantial justice and to enable the applicants to prosecute their rights on merits. 4 6. In the result, the present Civil Application is allowed in terms of prayer clause (A) thereof and delay of 491 days occurred in filing accompanying application for restoration of Contempt Petition No.263/2004 stands condoned. Present Civil Application stands disposed of accordingly. Civil Application for restoration be registered accordingly. (S.P. DAVARE, J.) fmp/ca8703.08