1 15.11 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.15 OF 2011 IN FAMILY COURT APPEAL NO.137 OF 2010 Mr.Tejraj @ Sonalkumar Arvind Goswami ...Applicant Versus Mrs.Rakhi @ Jayashree Tejraj Goswami ...Respondent ...... Mr.H.E.Palve for Applicant. Mr.Hitesh Vyas for Respondent. ...... CORAM:- A.M.KHANWILKAR AND R.Y.GANOO, JJ. DATED:- JUNE 10, 2011. P.C. 1. This application is made for recalling order dated 15th November, 2010 and to restore the Family Court Appeal No.137 of 2010 to its original number to be proceeded on merits. The Appeal was dismissed on 15th November, 2010 on account of non-appearance of the applicant. In the application, it is stated that it was mistake of the Advocate, for which he could not remain present when the matter was called out. The fact that the matter was notified on Board is not in dispute. Further, there is nothing to show that the Advocate made attempt to request the Court on the same day to restore the matter as he could not appear due to mistaken belief that 2 15.11 original side matters will be taken first. The present Application has been filed immediately within four days i.e. on 16th December, 2010, does not absolve the Advocate of the said duty to the Court. The explanation offered, in our opinion, is unacceptable. However, as the litigant should not suffer for the mistake of the Advocate, we are inclined to show one more indulgence to the applicant. 2. We have mentioned that we are inclined to show one more indulgence to the applicant because, besides the appeal was dismissed for default, the applicant has also failed to comply with the undertaking given by him as recorded in order dated 9th February, 2011 that he would deposit entire decretal amount before the next date of hearing. The matter was listed thereafter presumably on 1st April, 2011. But the decretal amount has not been deposited by the applicant so far. Inasmuch as the applicant is in arrears of about Rs.43,000/- as is stated across the Bar by the Counsel for the respondent. Besides, the applicant was liable to pay sum of Rs.10,000/- towards cost in terms of order dated 15th November, 2010 which direction has also not been complied by the applicant so far. 3 15.11 3. As a result, we would allow this Application on condition that the applicant shall now pay a lumpsum amount of Rs.60,000/- to the respondent within one week from today and produce payment receipt in the Registry within the same time, failing which, the office shall presume that the earlier order of dismissing the Appeal is revived and consequently the Appeal be treated as dismissed for non-prosecution. However, if the above condition is complied, the order dated 15th November, 2010 shall stand complied with and the Appeal will be restored to the file to be proceeded on its own merits as per its turn. 4. During the course of hearing, Counsel for the applicant had informed the Court that the applicant has already made payment of Rs.7,000/- to the respondent by bank draft. However, that bank draft has been returned back by the Counsel for the respondent to the Advocate for the applicant, as, it is issued in the name of Rakhi Goswami and the respondent does not have any bank account in that name. The amount of Rs.60,000/- shall be paid by the applicant directly to the respondent in cash and as aforesaid, receipt/acknowledgment shall be produced in the Registry. 4 15.11 5. It is made clear that payment of Rs.60,000/- as indicated above, would absolve the applicant of payment of outstanding maintenance amount of Rs.43,000/- + Rs.10,000/- towards earlier cost. Application disposed of on the above terms. (R.Y.GANOO, J.) (A.M.KHANWILKAR, J.)