1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7573 OF 2009 Mr.Noormohammed Abdul Tamboli (Shaikh) .. Petitioner versus Alimohammed Suleman Khan .. Respondent Mr.Vishwanath S. Talkute for the petitioner. Mr.Rahul Kate for respondent. CORAM : A.S.OKA, J. DATE : 23rd March 2010. P.C.: . The submissions of the learned counsel appearing for the parties were already heard on the earlier date. By this writ petition under Article 227 of the Constitution of India, the challenge is to the judgment and order dated 11th August 2009 passed by the learned trial Judge on an application for condonation of delay made by the petitioner. Notice for final disposal was issued on 9th October 2009. 2. The petitioner is the original plaintiff. The suit filed by the petitioner was decreed. Thereafter, there was an order or remand passed by the District Court. After order of remand was passed, the petitioner filed his own affidavit in lieu of examination-in-chief. The petitioner was cross-examined. Thereafter, the petitioner filed an affidavit of a witness. The said witness was not available for cross-examination and therefore, by order 31st August 2006 2 the suit was dismissed for non prosecution. It appears that on the very day an application was made by the advocate for petitioner before the trial Court. In the application it was stated that the advocate for petitioner had issued notice to the petitioner by registered post A.D. It was pointed out that an acknowledgment of the said notice was not received and therefore the vakalatnama of the advocate has not been cancelled. The prayer for restoration was made by the said application on the ground that the petitioner was likely to suffer prejudice. By judgment and order dated 13th September 2006, the order of dismissal was set aside subject to payment of costs of Rs.1,000/-. As the amount of costs was not paid, by further order dated 7th October 2006 the learned Judge recorded that the order of dismissal of the suit stands. An application was made by the petitioner for restoration of the suit on 18th June 2007. Alongwith the said application, an application for condonation of delay was made by the petitioner. The parties were permitted to adduce evidence. By the impugned order, the application for condonation of delay has been rejected. 3. The learned counsel appearing for the petitioner submitted that the order of dismissal of the suit was passed in absence of the petitioner and the same was restored on the application made by the advocate for the petitioner. He submitted that the petitioner was not made aware regarding the order of payment of costs. He pointed out that detailed reasons for delay have been assigned by the petitioner in the application made before the trial Court. He submitted that the trial Court ought to have adopted a justice 3 oriented approach and condoned delay. The learned counsel appearing for the respondent opposed the petition by pointing out that even after restoration of the suit, the petitioner could not deposit the amount of costs though a sufficient opportunity was given by the trial Court to deposit the amount of costs. He submitted that the petitioner has been completely negligent and therefore, this Court should not interfere. He invited my attention to the cross-examination of the petitioner. 4. The learned trial Judge has observed that there was no explanation for delay of 19 months and the ground of sickness has not been established. It must be stated here that in absence of the petitioner the suit was dismissed for non prosecution. An application was made by the advocate for the petitioner on the same day for restoration by pointing out that an intimation has been sent by him to the petitioner by registered post A.D but the same has not been received by him. In the order dated 7th October 2006, the learned trial Judge has noted that the petitioner appeared before the Court on 25th September 2006 and the suit was adjourned till 27th September 2006. however, the petitioner did not deposit the amount of costs. Therefore, by further order dated 7th October 2006, the trial Court recorded that the suit stands dismissed. 5. According to the case of the petitioner, he was constantly under treatment of Dr.Sathe and Dr.Bhalagagde for heart ailment. It is his 4 contention that the advocate appointed by him did not give him information about the suit. The case made out in the application is that when on 6th May 2008, the petitioner approached his advocate to find out the progress of the suit, he was informed that he suit has been dismissed for non prosecution. In the affidavit-in-lieu of examination-in-chief, he has stated that from August to October 2006 the petitioner was suffering from heart ailment and in view of advice received from Dr.Deepak Bhalegade, he was mostly confined to bed. He stated that though advocate appointed by him had informed him about the withdrawal of vakalatnama, but he was not made aware about the order of payment of costs of Rs.1,000/-. He pointed out that when he had made applications at Exhibits 155 and 156, he was not made aware of the order of payment of costs. The application made by the petitioner on 27th September 2006 which is annexed to the petition clearly indicates that the petitioner was not made aware regarding the direction of payment of costs. In fact he was not aware that his witness was not cross-examined. It was stated in the said application that after considering the entire documents a decision may be taken and for making submissions, time of two days was sought. This application indicates that the petitioner was not aware about the direction issued as regards payment of costs. 7. It is true that the petitioner waited till 18th June 2008 to apply for restoration. The case made out by the petitioner is that he was not aware of the order regarding payment of costs. Considering the averments made in 5 the application and what is stated in the affidavit in lieu of examination-in- chief of the petitioner, a liberal and justice oriented approach ought to have been adopted by the trial Court and ought to have condoned the delay. According to me the trial Court has adopted a very technical approach. Hence, petition must succeed and I pass the following order: : O R D E R : (a) The impugned order dated 11th June 2009 is quashed and set aside and Application No.44 of 2008 is allowed. (b) The trial Court will register the main application for restoration of the suit. (c) The petitioner will pay costs of Rs.5,000/- to the respondent. The amount has been already deposited in this Court. The respondent will be entitled to withdraw the said amount. (d) The petition is allowed in above terms. (A.S.OKA,J)