IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.454 OF 2009 IN CIVIL APPLICATION NO.2399 OF 2004 IN WRIT PETITION NO.4035 OF 2003 Mr.Rohit M.Sanghavi ...Applicant V/s. Messrs.Patel Clinic & Anr. ...Respondents ...... Mr.R.V.Govilkar for Applicant. Mr.R.B.Jaiswal for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 24, 2009. MARCH 24, 2009. MARCH 24, 2009. P.C. 1. Heard Counsel for the parties. 2. By this Application, the Applicant prays for recall of order dated 8th August 2006. Indeed, the Applicant may be justified in pointing out the fact recorded in the order dated 8th August 2006- that the Applicant failed to comply with the earlier conditional order dated 8th December 2005 : 2 : on account of non-payment within time, is incorrect. In that, the Applicant had already paid the amount in terms of order dated 8th December 2005 on 14th December 2005 as per the noting found on document at page 12. That payment was within time. The fact remains that no appearance was made before the Court on 8th August 2006. The justification offered across the Bar by the Counsel for the Applicant is that the matter went by default because of mishap in the office of the Advocate which resulted in destruction of the entire record due to fire. Even so, it is not the case of the Applicant that the name of the Advocate was not notified on the Board issued by the Court for 8th August 2006. Nothing prevented the Advocate and the Applicant to appear before the Court on that date. The explanation offered by the Applicant is therefore unacceptable. 3. However, as the litigant should not suffer for the mistake of the Advocate, by way of indulgence, the Application is granted on condition that the Advocate on record for the Applicant shall personally pay cost quantified at Rs.3,000/- : 3 : (Rupees Three Thousand) to High Court Legal Services Committee and further amount of Rs.3,000/- (Rupees Three Thousand) to the Respondents represented by Counsel before this Court. Payment be made on or before 26th March 2009, failing which, Office shall treat this Application as dismissed for non-prosecution without further reference to the Court. A.M.KHANWILKAR, J.