1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2641 OF 2008 Shridhar Tukaram More ...Petitioner vs. Kishor Mohan Mayekar & Others ...Respondents Mr.Dharam i/b M/s.Dharam & Co. for the petitioner Mr.V.M.Bhate for respondent nos.1 and 6 Ms Uma Sharma for respondent nos.2,3,4, 8 and 9 CORAM :A.S.OKA,J. DATE : MARCH 8, 2010 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent nos.1 and 6. Respondent no.7 has been served with the notice. Notice for final disposal was issued on 11 th June 2008. As against the rest of the respondents the petition stands dismissed. 2 The first respondent filed an application before the Civil Court for grant of Letters of Administration. The petitioner and the second respondent objected to the grant of Letters of Administration. The application was allowed on 30 th November 2002. Within the stipulated period of limitation, the petitioner preferred an Appeal against the said order. The Appeal was admitted. On 20 th December 2004, the Appeal was dismissed in default. On 24 th November 2005, the petitioner filed Writ Petition challenging the order dismissing the appeal in default. On 23 rd January 2006, Writ Petition was permitted to be withdrawn with liberty to file an appropriate application before the Appellate Court. On 9 th March 2006, an application was filed by the petitioner before the 2 District Court for setting aside the order of dismissal. By the impugned order, the said application has been rejected. 3 The learned counsel for the petitioner invited my attention to the averments made in the application before the District court. He submitted that the reasons for absence of the petitioner have been set out in the application. This was a case where the Appeal ought to have been restored. The learned counsel for the 1 st and 6 th respondents opposed the petition. He pointed out that the Advocate representing the petitioner before the District Court had sent intimation by Registered Post A.D. to the petitioner and notwithstanding the said intimation, the petitioner did not respond and therefore, the appeal was dismissed for non prosecution. He submitted that there is a gross and unexplained delay in filing the writ petition. He pointed out that the earlier writ petition was filed nearly after 11 months from the date of dismissal of the Appeal. He pointed out that though the writ petition was allowed to be withdrawn on 23 rd January 2006 with liberty to approach the District Court, the petitioner waited till 9 th March 2006 to file the application for restoration. He pointed out that altogether new stand has been taken in the writ petition by shifting blame on the Advocate appointed by the petitioner. He placed reliance on the decision of this Court in case of Pramila Dinkarrao Tathe and others Vs.Shantabai @ Shalinibai Ramkrishna @ Bhaurao Tathe and others [2008 (Supplementary) Bombay Cases Reporter 286]. He, therefore, submitted that no interference is called for. 4 I have given careful consideration to the submissions. It is true that from the date of dismissal 3 of the appeal in default, the petitioner did not approach this Court expeditiously. Nevertheless, on 23 rd January 2006 this Court granted liberty to the petitioner to apply before the Appellate Court. Accordingly, the application was made by the petitioner by invoking Rule 19 of Order XLI of the Code of Civil Procedure,1908 praying for restoration of the Appeal. 5 This Court has taken a view that in an appeal unless the Appellate Court requires personal presence of the appellant, it is not necessary for the appellant to remain present on the date of hearing of the appeal. Though the Appellate Court in impugned order has noted that the Advocate for the appellant had informed the petitioner of the date fixed by sending intimation by Registered Post A.D., it appears that the Advocate appointed by the petitioner did not seek permission to withdraw his appearance and he continued to appear for the petitioner. 6 After this Court permitted the petitioner withdraw earlier writ petition with liberty to approach the District Court, the petitioner has expeditiously approached the District court. It is true that the petitioner approached this Court by way of earlier writ petition after lapse of 11 months after the dismissal of the Appeal. Notwithstanding the delay, this Court permitted the petitioner to approach the District Court for restoration. The application before the Appellate Court was under Rule 19 of Order XLI of the said Code. As the substantive appeal preferred by the petitioner was dismissed, considering the facts of the case and especially when this Court had granted liberty to approach the Appellate Court, the Appeal ought to have been restored by awarding costs to the respondents. 4 7 Considering the nature of controversy between the parties, the petitioner is liable to pay exemplary costs to the first respondent. The amount of costs is quantified is Rs.10,000/-. 8 Accordingly, I pass the following order : i) Impugned order dated 2 nd January 2008 is quashed and set aside and Misc. civil Application no.13 of 2006 is hereby allowed. Civil Appeal no.9 of 2003 is restored to the file subject to the petitioner paying costs of Rs.10,000/- to the first respondent within a period of six weeks from today. Deposit of the amount of costs with the District Court within stipulated period will be treated as sufficient compliance with this order. If compliance is not within stipulated time, the order of dismissal of the appeal will stand. ii)Writ Petition is allowed on above terms. JUDGE