1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5927 OF 2008 Shri Ankush Biku Ithape. ..Petitioner. V/s. Gagrabai G. Ithape & Ors. ..Respondents. Ms.Sujata S. Mogre for petitioner. Mr.S.R.Page i/b. C.N.Gole for Respondent Nos. 3 and 4. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : APRIL 2, 2009. DATE : APRIL 2, 2009. DATE : APRIL 2, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Page waives notice for Respondent Nos. 3 and 4. 4. As short question is involved, Petition is taken up for final disposal forthwith by consent. 5. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Ad-hoc District Judge-2, 2 Satara dated 11th April, 2008 below Exh.1 in Misc. Civil Application(Restoration) No.3/07. By the said order the Lower Court rejected the Petitioner’s application for restoration of the appeal, which was dismissed for default. The Court below has discarded the version of the Petitioner that he was unable to appear and prosecute the appeal on account of reasons beyond his control. The Court below has recorded that the Petitioner did not tender any affidavit as regards the correctness of the certificate filed by him regarding his disease. 6. The fact that medical certificate was filed in the court is not in dispute. Genuineness of the said certificate was not challenged by the Respondents, as such. The Appeal was dismissed for default on 9th November, 2006. Since thereafter, the Petitioner applied for setting aside the said Order by way of present application filed on 5th December, 2006. It is not a case of dishonest claim of the Petitioner. In the interest of justice therefore, the Court below ought to have shown indulgence to the Petitioner and given one opportunity to prosecute the appeal on its own merit. 7. Accordingly, this Petition succeeds. The 3 impugned Judgment and order is set aside on condition that the Petitioner shall pay costs quantified at Rs.7,000/-, to be shared equally by the Respondents, as condition precedent for restoration of the Appeal and towards costs of the present Petition. Amount of costs be deposited before the Appellate Court within four weeks from today. 8. If the above condition is complied with, the Appeal be treated as restored to the file of the Appellate Court to its original number, to be proceeded in accordance with the law. 9. The parties shall appear before the Appellate Court on 8th May, 2009, on which date the Appellate Court may indicate schedule for hearing of the appeal, as may be advised. 10. It is made clear that the Appellate Court shall not entertain any request for adjournment at the instance of the Petitioner/Appellant in the restored Appeal. If such request is made, same can be rejected and the Appeal once again be dismissed for non-prosecution. It is on this condition, indulgence has been shown to the Petitioner in restoring the Appeal, as aforesaid. 4 11. Petition disposed of accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)