WP 8340/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8340 OF 2010 Satyavrat s/o. Shivram Jindam, R/o. "Sankalp", Gokul Nagar, Near Kothari Complex, Nanded & Anr. ....Petitioners. Versus Nasirkhan s/o. Gaffarkhan, R/o. Babuseth Compound, Station Road, Nanded & Anr. ....Respondents. Mr. S.V. Warad, Advocate for petitioners. Mr. N.K. Kakade, Advocate for respondents. CORAM: B.P. DHARMADHIKARI, J. DATED: 7th March, 2011. COURT'S ORDER : 1. Heard. Petitioner/plaintiff, whose suit is already dismissed in default, did not diligently attend the matter of counter claim. They took some adjournments. Therefore, Trial Court proceeded against them by passing order of "no cross". With the result, the defendant, who was plaintiff in counter claim was not cross examined on 15.7.2010. 2. On 31.7.2010 by moving an application at Exh. 89 he attempted to justify his absence on 15.7.2010 by contending that he was required to go to attend his wife's sister admitted in hospital at Latur. He accordingly informed his advocate and inadvertently the application remained to be WP 8340/2010 2 filed before the Court. He therefore sought recall of no evidence order. 3. The application was opposed by other side. Trial Court by impugned order dated 17.8.2010 after noticing different stand rejected that prayer. 4. Learned counsel has relied upon judgment reported in 2000 (8) SCC 532 in the case of State Bank of India Vs. Km. Chandra Govindji, particularly paragraph 7 to point out that it is the reason for absence on 15.7.2010 which should have weighed with the Trial Court. According to him, Trial Court should not have considered the earlier conduct or negligence in the matter. Similarly to point out how parties depend on Advocate and cannot suffer for the lapse on the part of Advocate, judgment reported in 1981 AIR (SC) 1400 in the case of Rafiq Vs. Munshilal, paragraph 3 is pressed in to service. 5. Rafiq Vs. Munshilal (supra) is the judgment which considers responsibility by an advocate representating appellant in High Court. In High Court client has got no role to play. But, here the matter was before Trial Court and on 15.7.2010 present petitioner was to lead his evidence. In his absence evidence could not have been recorded. The judgment therefore has got no application. Moreover, there are no allegations made against the said Advocate, though during oral arguments learned WP 8340/2010 3 counsel attempted to show something, but then in guarded fashion, simultaneously urging that he was not blaming the advocate. This approach cannot be appreciated. 6. State Bank of India Vs. Km. Chandra Govindji (supra) is the judgment which in paragraph 7 states "ordinarily" the reasons given for absence on the date should only be looked into. The facts here show that the Trial Court has correctly looked into the previous conduct also. The plaintiff whose suit was dismissed chose not to cross examine defendant/plaintiff in counter claim, was seeking recall of order of no evidence by making vague allegations. The mode and manner in which application is moved also shows the casual approach. 7. I am therefore not inclined to interfere in the matter. With costs of Rs. 1000/- (Rupees one thousand) payable to the Legal Aid Committee of High Court, present petition is dismissed. [ B.P. DHARMADHIKARI, J.] ssc/wp8340.10