... 1 ... IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.7961 OF 2005 APPLICATION NO.7961 OF 2005 APPLICATION NO.7961 OF 2005 AND CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.7960 OF 2005 APPLICATION NO.7960 OF 2005 APPLICATION NO.7960 OF 2005 M/s.National Polymers ...Applicant (In both the Applications) Vs. Eastern Polymers & Anr. ...Respondents (In both the Applications) Shri Pradep B. Mandhyan i/by Shri Vijaykumar Tiwari for the Applicant in both the Applications. Shri Nitin Trivedi for the Respondent Nos.1 to 3 in both the Applications. Shri Y.M.Nakhwa, A.P.P for the State in both the Applications. CORAM CORAM CORAM : A. S. OKA, J. : A. S. OKA, J. : A. S. OKA, J. DATE DATE DATE : OCTOBER 16, 2006. : OCTOBER 16, 2006. : OCTOBER 16, 2006. P.C.: P.C.: P.C.: 1. Heard the learned Advocate appearing for the Applicant and the learned Advocate appearing for the first to third Respondents. Criminal Application No.7961 of 2005 is filed for condonation of delay in filing application for restoration of an Application for leave to prefer an appeal which was dismissed for non-prosecution on the basis of order date 16th March, 2001. The Criminal Application No.7960 of 2005 is for restoration of the said Application for Leave (Application No.1855 of 1999). ... 2 ... 2. The Advocate for the Applicants in both these Applications submitted that the Advocate who was engaged by the Applicants in Criminal Application No.1855 of 1999 committed default as a result of which the objections in the said Application were not removed. He submitted that there was a clear default on the part of the Advocate and that is the reason why the Application for Leave was dismissed for non-prosecution on the ground of non-removal of office objections. He submitted that the Applicants came to know about dismissal of the Application for grant of Leave for the first time on 21st November, 2005. Thereafter, the Applicants wrote a letter to their erstwhile Advocate for securing no objection to engage another advocate. Thereafter, the Applicants applied for certified copies of the orders passed by this court which were ready on 29th November, 2005 and the Application No.7960 of 2005 for restoration was filed on 07th December, 2005. He stated that necessary action has been taken by the Applicant against their Advocate. 3. The learned Advocate appearing for the first to third Respondents opposed these two Applications by submitting that the Applicants have shifted the entire ... 3 ... blame on their Advocate. He submitted that the Applicants kept quiet for such a long time and did not make any inquiry regarding fate of Application for leave filed by them. He submitted that there was a gross negligence on the part of the Applicants themselves and therefore, no case is made out for restoration of the Application which was filed in the year 1999. 4. The perusal of the record of disposed of application (Criminal Application No.1855 of 1999) shows that various objections were raised by the office including the objection regarding failure to file a separate application for condonation of delay. An order was passed on 16th March, 2001 by the learned single Judge of this court granting two weeks time to remove office objections failing which it was directed that the Application will automatically stand dismissed for default without reference to the court. The said order became operative as objections were not removed. The Applicants had engaged services of an Advocate. Once services of the Advocate were engaged, it was the duty of the concerned Advocate to remove office objections. If the Advocate did not remove the office objections, the Applicants cannot be blamed. No fault ... 4 ... can be found with the Applicants as they had engaged services of an Advocate and it was the duty of the Advocate to ensure that objections are removed within the time granted by the court. 5. The Applicants cannot be blamed on the ground that they did not make inquiry with the Advocate as regards the fate of the Application for leave. Even the litigants are aware about the pendency of large number of matters in this court and therefore, after entrusting the matter to the Advocate, the Applicants cannot be blamed if they did not contact their Advocate to find out the stage of the case. A clear averment has been made in the Application (Criminal Application No.7961 of 2005) that the Applicants came to know for the first time on 21st November, 2005 regarding dismissal of the Application. Specific assertions have been made in the said Application that the Advocate for the Applicants never informed the Applicants that there was a delay in filing the Application for leave. The Application for restoration has been filed within 17 days from the date knowledge. Hence, a case is made out for condonation of delay in filing Application for restoration and for passing an order of restoration. It is true that some prejudice will be caused to first ... 5 ... to third Respondents which can be compensated by awarding appropriate costs. 6. Hence, I pass the following order: (i) Criminal Application No.7961 of 2005 is allowed in terms of prayer clause (a) subject to the Applicants paying costs of Rs.7,500/- to the first to third Respondents within a period of six weeks from today. Payment of costs will be condition precedent. (ii) Criminal Application No.7960 of 2005 is allowed in terms of prayer clauses (a) and (b) subject to condition that all office objections in the Application No.1855 of 1999 will be removed within a period of six weeks from today. If office objections are not removed, the order of dismissal of the Application will stand. (iii) If compliance is made by the Applicants within period of six weeks from today, office is directed to place Criminal Application No.642 of 2006 on board on 08th December, 2006. ... 6 ... JUDGE JUDGE JUDGE