1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.121 OF 2007 1. Pashmina D/o.Sumeshchandra Varma, (Now W/o.Rajendra Kshtriya), Age-56 years, Occu-Household, R/o.Ahmedabad (Gujrat) 2. Sonal D/o.Sumeshchandra Varma, (Now W/o.Naresh Gujrathi), Age-50 years, Occu-Household, R/o.Calcutta (West Bengal) 3. Heena D/o.Sumeshchandra Varma, (Now W/o.Ashutosh Gujrathi) Age-45 years, Occu-Household, R/o.Mumbai, Through their General Power of Attorney Holder, Kishorkumar S/o.Sumeshchandra Varma, Age-54 years, Occu-Business, R/o.Somesh Colony, Nanded APPELLANTS (Original applicants) VERSUS The Sharda Bhavan Education Society, Through its Secretary, D.P.Sawant, Age about 52 years, Occu-Business, R/o.Shivaji Nagar, Nanded RESPONDENT (Original defendant) Mr.D.R.Bhadekar, learned counsel for appellants. Learned counsel for respondent no.2 absent when called out. 2 (CORAM : A.V.POTDAR, J.) DATE : 15/03/2010 ORAL JUDGMENT : 1. This AO is preferred challenging the order passed by the Civil Judge, S.D. in Misc.R.J.E.No.237/2004, dated 07/08/2006 by which the restoration application filed by the petitioner, for restoration of suit, was dismissed in default. 2. It appears that initially this order dated 07/08/2006 was challenged by preferring the appeal before the Principal District Judge, Nanded, but it appears that considering the valuation of the suit and in view of the provisions u/s. 106 of The CPC, the appeal was returned to the appellants for presentation before this Court on or before 10/04/2007, hence the present A.O. before this Court challenging the order impugned dated 07/08/2006 by Jt.Civil Judge, S.D. Nanded, dated 07/08/2006. 3. It appears that this A.O. was admitted after hearing learned counsel for appellants and respondent vide order dated 27/04/2009. 4. When today the A.O. came up for final hearing, inspite of repeated calls, learned counsel for respondent remain absent. Heard learned counsel for appellants who is present in the Court. 5. It appears that the said Spl.C.S.No.229/1998 was dismissed in 3 default on 17/11/2004, as when called out both the parties and their counsels were absent. It appears that the petitioners plaintiffs have filed an application for restoration of the said suit by preferring Misc.R.J.E.No.237/2004. After hearing both the sides, even though the petition is filed under order 9 rule 9 of CPC, the learned Trial Court was of the view that no sufficient cause was shown to restore the suit, hence under order 9 rule 13 of CPC, declined to restore the suit, and dismissed the restoration petition. 6. During the course of submissions across the bar, my attention is drawn towards the Roznama of the said case, of which copy is annexed alongwith the A.O. It reveals that not only on the date when the suit was dismissed, but prior to that, the parties were absent, but their counsels appeared to be present. Prior to that, on 12/08/2004, the parties were absent, and their counsels present. It shows that the parties were absent, but their counsels were present. Prior to that on 05/08/2004, parties were present alongwith their advocates and on that day, notice was given to admit or deny the documents produced by the parties, on which they are relying during the evidence before the Trial Court. 7. In para no.9 of the impugned order, it is observed by the Trial Court that entry of wrong date in the pleader’s diary does not constitute “sufficient cause” for restoration of suit. In the recent judgments passed by this Court at Principal Seat, consistent view is taken and also it is a settled legal position that for the fault of 4 counsel or advocate, the litigant must not suffer. In the restoration petition before the Trial Court, it appears that stand is taken by the counsel for appellants that as the wrong date was entered in his diary as to when the suit was listed for final hearing, neither counsel nor the party could remain present before the court, which resulted in dismissal of the said suit. The date fixed to give evidence in the Court was not communicated to the party by the counsel as wrong date was entered in his diary, which resulted in dismissal of the suit in absence of parties and their counsels. Considering these aspects, on facts as well as in law, bearing in mind the principle that for the fault of counsel, litigant must not suffer, the trial court must not so harsh to dismiss the suit for default and decline to restore the same, but the suit can be restored on saddling costs on the party, at whose instance the suit was dismissed. Whatever it may be, as the lower court declined to restore the suit, which resulted into the appellant/ plaintiffs to file the present AO. Considering all these aspects, case is made out to set aside the order passed on 07/08/2006, hence the order impugned is liable to be quashed and set aside. Accordingly the order dated 07/08/2006 passed in Misc.R.J.E.No.237/2004 is hereby quashed and set aside. Spl.Civil Suit.No.229/1998 is restored to the file of Civil Judge, S.D. Nanded. Parties to appear before the Lower Court on 31/03/2010. In case, respondent/defendant will not appear on the adjourned date, the lower court to issue notice for his appearance, after receipt of R & P. 8. Rule made absolute as indicated above. 5 9. A.O. stands disposed of accordingly. 10. Registry to sent back the R & P to the Trial Court, by the way no in-convenience will be caused to the Trial Court in deciding the matter. (A.V.POTDAR, J.) khs/MAR 2010/ao121-07