1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8663 of 2009 Savala Maruti Navale ...Petitioner vs. 1 Laxman Maruti Navale 2 Popat Maruti Navale 3 Smt.Kantabai Shahaji Navale 4 Prakash Shahaji Navale 5 Bhausaheb Shahaji Navale 6 Rajendra Shahaji Navale 7 Smt.Khakubai Maruti Navale ...Respondents Mr.S.S.Salunkhe for the petitioner Mr.Lanke i/b M/s.Shelke & Company for the respondent no.1 CORAM : A.S.OKA, J. DATED :FEBRUARY 10, 2010 JUDGMENT :- 1. The petitioner who is the original second defendant has challenged the judgment and order dated 1 st August 2009 passed by the learned District Judge, Baramati by which an application for restoration made by the petitioner has been dismissed. With a view to appreciate the submissions made in support of this writ petition under Article 227 of the Constitution of India, it will be necessary to briefly refer to the facts of the case. 2 2 The first respondent filed a suit against the petitioner and others for declaration of ownership and for perpetual injunction. By judgment and decree dated 5 th December 1999, the suit was decreed. An application was made by the petitioner before the trial court for setting aside the ex-parte decree. There was a delay in filing the said application. Therefore a separate application for condonation of delay was filed which was rejected by the trial court by judgment and order dated 9 th September 2005. 3 The petitioner purported to prefer an appeal against the decree before the District Court. In the said appeal, there was a delay of 815 days. Therefore miscellaneous civil application No. 36 of 2006 was filed by the petitioner for condonation of delay. On 20th of July 2007, the said application was dismissed as the advocate for petitioner was absent. Therefore, the petitioner filed miscellaneous civil application No. 63 of 2007 for restoration of the said application No. 36 of 2006. On 7 th March 2008, the said application was dismissed as the petitioner and his advocate were absent. The petitioner filed this miscellaneous 3 civil application No. 29 of 2008 for restoration of the said application No. 63 of 2007. By the impugned judgment and order dated 1 st August 2009, the said miscellaneous civil application No. 29 of 2008 has been dismissed. The prayer in this writ petition is for quashing and setting aside orders dated 20th July 2007, 7th March 2008 and 1st August 2009 respectively. 3 The learned counsel appearing for the petitioner submitted that the applications were dismissed for default as the advocate appointed by the petitioner was not present. He submitted that as the petitioner had engaged an advocate to prosecute the appeal and application for condonation of delay, it was not necessary for the petitioner to remain present on each and every date before the District Court. He pointed out that in miscellaneous civil application No. 63 of 2007 it was pointed out by the petitioner that he could not remain present on 20th July 2007 as his leg was fractured. He pointed out that the petitioner had assigned reasons for remaining absent on 7 th March 2008. He submitted that without considering the reasons set out by the petitioner, the learned District Judge has rejected 4 the applications. He submitted that the application for condonation of delay in preferring the appeal deserves to be heard on merits. He submitted that the said applications for restoration could have been allowed subject to payment of costs. The learned counsel appearing for the first respondent opposed the petition. He submitted that by filing successive applications, the petitioner has successfully delayed execution of the decree passed on 5 th December 1999. He submitted that the petitioner persistently remained absent. He pointed out that the petitioner’s advocate also remained absent. He submitted that this is a case where there is a gross negligence on the part of the petitioner and therefore, no indulgence can be shown to the petitioner. He submitted that considering the conduct of the petitioner, no interference be made in this petition. 4 I have given consideration to the submissions. In this petition it is not necessary to go into the merits of the application for condonation of delay. The said application was dismissed as the petitioner and his advocate remained absent on the date on which the same was fixed for hearing. Miscellaneous civil application No. 63 of 2007 was taken out for 5 restoration of the application for condonation of delay. In the said application it is pointed out that on 20th July 2007 the petitioner could not remain present as he suffered an accident of motorcycle due to which his leg was fractured. The name of the medical practitioner from whom the petitioner was taking treatment was disclosed in the said application. The said application was filed along with an affidavit of the petitioner. On 7 th March 2008 , the said application was dismissed for non- prosecution as the advocate for petitioner and the petitioner himself remained absent. It is true that the petitioner remained absent. However, it cannot be ignored that the petitioner had engaged an advocate in the aforesaid applications. Affidavits in support were already filed by the petitioner. There is no finding recorded by the District Court that the personal presence of the petitioner was ordered by the said Court. When the Application for Condonation of Delay was dismissed, it is not the case that the said application was fixed for recording of evidence of the petitioner. It is stated that the petitioner had already filed an affidavit in support of the said application. The personal presence of the petitioner was not required. Unfortunately , on every occasion , the advocate appointed by the petitioner 6 remained absent. A litigant cannot be made to suffer because of a default on the part of his advocate. 5 In the impugned order, the learned at District Judge has observed that miscellaneous application No. 29 of 2008 filed for restoration of miscellaneous civil application No. 36 of 2006 was not maintainable. The said finding is erroneous. Miscellaneous civil application No. 36 of 2006 was dismissed for non-prosecution on account of the absence of the petitioner and his advocate. The petitioner had filed miscellaneous civil application no. 63 of 2007 for restoration of the aforesaid civil miscellaneous application No. 36 of 2006. The miscellaneous civil application no. 29 of 2008 was filed for restoration of the said miscellaneous civil application no. 63 of 2007. Therefore, miscellaneous civil application no. 29 of 2008 was certainly maintainable in view of section 141 of the Code of Civil Procedure, 1908. It is true that the first respondent-original plaintiff has suffered and will suffer further prejudice if the application for condonation of delay is restored. Therefore if applications made by the petitioner are to be allowed, the petitioner will have to pay exemplary costs to the first 7 respondent quantified at Rs. 20,000 /- . Accordingly a demand draft in the sum of RS 20,000/- drawn in favour of the first respondent has been handed over by the Advocate for the petitioner to the Advocate for first respondent before this Court. Hence, by setting aside the impugned Orders, the application for condonation of delay deserves to be restored. The said application will have to be heard expeditiously. 6 Hence, I pass the following order : (i) The petition is allowed in terms of prayer clause (a) subject to the petitioner paying costs of Rs.20,000/-to the first respondent. The amount of costs is paid by the petitioner to the first respondent in the court by a demand draft. (ii) The miscellaneous civil application No. 36 of 2006 is hereby restored. The same shall be decided as expeditiously as possible. (iii) The petition is allowed in above terms. JUDGE