1 ao1143 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.1143 OF 2010 Kapil Dev Shantadev Tondon & Anr. ...Appellants vs. Surendra Shantadev Tondon & Anr. ...Respondents Mr.Anil Mishra i/b Mr.S.S.Bangera for the appellants Mr.Kantilal Kanojia for the respondent no.2 CORAM : A.S.OKA,J. DATE : APRIL 19,2011 P.C.: 1 Heard the learned counsel for the appellant and the learned counsel for the respondent no.2. The office remark shows that the respondent no.2 has been servd. This court has issued notice for final disposal at admission stage. 2 The appellants are the plaintiffs. The suit filed by the appellants was dismissed in default on 21 st April 2006. The application for restoration of the suit was made by the appellants in the year 2008. The learned trial Judge rejected the application on the ground that the delay is not satisfactorily explained. 3 The learned counsel for the appellants pointed out averments made in the application for restoration and in particular in paragraphs 3 and 4 thereof. The said averments show that the appellants were not aware of the dismissal of the suit and they became aware about the dismissal of the suit on 10 th September 2008. He pointed out that the application for restoration has been filed 2 ao1143 on 20th October 2008. He submitted that non appearance of the appellants due to ill health and hospitalization is not the only ground pleaded in this application and what is stated in paragraphs 4 and 5 has been completely ignored by the learned Judge. The learned counsel for the second respondent submitted that in appeal arising out of the order passed on notice of motion taken out by the respondents, there is a finding recorded as regards suppression of fact by the appellants. He submitted that the trial Court has considered the grounds in the application and recorded a correct finding of fact that the delay has not been explained. He submitted that considering the conduct of the appellants, the trial Court was justified in dismissing the application for restoration. 4 I have considered the submissions carefully. In the application for restoration, in the paragraphs 3 and 4, the 1 st appellant has stated thus : 3 I say that I have appointed Mr.K.J.Somne, as Advocate for attending in the matter. I say that the plaintiffs are senior citizens. I am not keeping good health due to our advanced age and deteriorating health conditions, they are not able to remain present on every date before the Hon ble Court, plaintiffs have been told by their Advocate that their presence are not required in the Hon ble Court on every date and has been further told that as and when their presence are required they will be informed and accordingly they will be required to remain present. I say that I have been never called upon or never been informed about the date and/or for remaining present in the Hon ble 3 ao1143 Court. The plaintiffs are under impression that as and when their presence are required their advocate will inform regarding our presence in the matter. 4 I say that as there was no information from the Advocate, therefore, we are under impression that as and when required the Advocate will inform us, believing Advocate and in good faith, the matter remained to be attended. I say that in meanwhile, I have appointed another Advocate in a pending Appeal wherein on 10th September 2008, I cam to know that the present suit is came to be dismissed for default. I was shocked and surprised to know the aforesaid fact, I say that till date, I was not aware about the order dated 21/4/2006 dismissing the suit for default. I say that as I was not aware therefore no application could be taken out earlier for restoration of the suit. I say that when I made inquiry from earlier Advocate he was not able to answer to me and told that he will let me know later on about the date and status of the matter. After much inquiry, he told that by oversight he could not noted the date in his diary and therefore it slipped from his mind to attend the matter. I say that due to the non vigilance of my Advocate, the plaintiff has been put to the severe cost and made to suffer for no fault of their. I say that we are not aware of the orders dated 21/4/2006 therefore no application at the earlier point of time could be taken out for setting aside the said order. I say that the plaintiffs have acted in good 4 ao1143 faith believing the word of their Advocate. 5 In paragraph 5 of the application, it is stated that the first appellant is suffering from various ailments. In paragraph 5 it is stated that the first appellant is 71 years old and was also admitted in the hospital. It is stated that he acted in good faith and believed his Advocate. If averments made in the paragraphs 3 to 5 are perused, the grounds for condonation of delay and the reasons for the absence of the appellants are set out in paragraphs 3 and 4 of the application wherein it is stated that only on 10th September 2008, the appellants became aware of the dismissal of the suit. Perusal of the impugned order shows that the learned Judge was under an impression that the alleged sickness of the first appellant was the only ground pleaded in the application and therefore, he has dealt with only the said averments. However, the learned trial Judge has not noticed the averments made in paragraphs 3 and 4 of the application. Within a period of about one month from the date of the knowledge of the dismissal of the suit, the application for restoration was filed. 6 It is well settled law that while dealing with the prayer for condonation of delay, the Court has to adopt a liberal and justice oriented approach. There is a sufficient cause for condonation of delay. In my view, a case for restoration of the suit is made out. 7 However, considering the length of delay, the appellants will have to pay costs to the respondent no.2. The amount of costs is quantified at Rs.25,000/-. It is also made clear that the interim relief, if any, operating in the suit is not restored and the appellants 5 ao1143 will be at liberty to file appropriate proceedings for grant of interim relief in the Trial Court. 8 Hence, I pass the following order : i) Impugned order dated 26th July of 2010 is quashed and set aside. ii)Misc. application no.29 of 2008 in S.C.Suit no.1570 of 2004 is allowed in terms of prayer clauses (a) and (b) thereof subject to condition of the appellants paying costs of Rs.25,000/- to the respondent no.2 within a period of eight weeks from today. Deposit of the amount of costs within stipulated period with the trial Court will be treated as sufficient compliance with this order. Payment of costs will be a condition precedent. iii)It is made clear that interim relief, if any, operating in the suit is not restored and it is for the appellants to take out appropriate proceedings in that behalf. iv)Civil application no.1401 of 2010 does not survive and the same is disposed of. JUDGE