ao88.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. APPEAL FROM ORDER NO.88 OF 2010. Nizamsab s/o Talabsab Bagwan, deceased through LRs. 1. Smt. Lalbee Nizamsab Bagwan, age 82 years, Occu. Household, and others. .. APPELLANTS. VERSUS 1. Karimsab s/o Ismailsab Bagwan, age 46 years, Occu. Business, r/o Hattenagar, Latur, Tq. & Dist. Latur and others. .. RESPONDENTS. ... Mrs. Madhaveshwari D. Thube-Mhase, Advocate for appellants. Shri Y.B. Pathan, Advocate for R.No.2-C. ... CORAM : S.S. SHINDE,J. DATE : 22.06.2011. PER COURT: 1. This appeal from order takes exception to the order dated 25th March, 2010 passed by the District Judge, Nilanga below Exh.1 in Civil M.A. No.45/2005. The said application was filed by the appellants herein under Order 41 Rule 19 of ao88.10 2 the Code of Civil Procedure for readmission of appeal dismissed for default. 2. The appellants, who are plaintiffs, filed R.C.S. No.150/2000 for recovery of possession of suit property against respondents herein. The said suit was dismissed with cost by C.J.S.D., Nilanga on 12.9.2002. The appellants herein preferred RCA NO.51/2002 against the said judgment and decree passed by the C.J.S.D., Nilanga. The said appeal was fixed for hearing on 9th November, 2005. However, on the said date, neither appellants nor their Advocate appeared before the Court and as a result, the Court was constrained to pass an order dismissing the appeal in default. The order dated 9th November, 2005 passed by the Ad-hoc Addl. District Judge, Nilanga reads thus: "When called appellants and their advocate remained absent. It appears that appellants are not interested in this matter. Hence, appeal stands dismissed in default." The appellants herein filed application for restoration of appeal. However, the same came to ao88.10 3 be rejected. Hence, this appeal from order. 3. The learned Counsel for the appellants submits that the right of the appellants to prosecute substantial appeal, which is continuation of the suit, gets defeated because of the order passed by the Court below dismissing the appeal in default. The application which was filed by the appellants for restoration of the said appeal came to be rejected on hyper technical ground that a medical certificate was not produced by the appellants on record before the appellate Court in support of his contention that he was not feeling well from 5.11.2005 to 11.11.2005. According to the learned Counsel for the appellants, when the appellant No.2 herein deposed on oath before the lower appellate Court that during the said period he was ailing and therefore, it was not possible for him to attend the Court proceedings or to instruct his advocate, the appellate Court should have taken a liberal view in the matter and should have allowed the application for restoration of the appeal. It is further submitted that due to the ao88.10 4 mistake of the advocate, the appellants should not suffer. Even the appearance of the appellants on the date on which appeal was fixed for hearing, was not required since the advocate was engaged on their behalf to argue the matter. It was the duty of the said advocate to appear and argue the matter. However, he did not appear on the date on which the appeal was fixed and therefore, the appeal was dismissed for default. Therefore, the learned Counsel for the appellants submits that the for the mistake of the advocate, the appellants should not suffer and their right to prosecute the appeal could not have been taken away by dismissing the appeal in default. In support of her contention that the appeal should not have been dismissed in default for want of presence of the appellants, the learned Counsel for appellants placed reliance on the reported judgment of this Court in case of Annasaheb Virupaksha Bidre vs. Dada Tatoba Patil and others (2005(2) Mh.L.J.221 and submitted that the facts of the present case are similar to the facts in the reported case. In the said case, when the appeal fixed for hearing was called out, the ao88.10 5 appellant as also his advocate remained absent. No medical certificate was placed on record by the appellant therein. However, this Court has taken a view that once the advocate was engaged, it was the duty of the advocate to attend the Court proceedings and therefore, because of the mistake of the Advocate, the appellant should not suffer. 4. On the other hand, the learned Counsel for the respondents submitted that the appeal was fixed for hearing from time to time from 2002 till the same came to be dismissed for default. However, neither the appellants nor their advocate attended the dates of hearing and as a result, the appeal came to be dismissed for default. It is further submitted that the appellants though contended before the Court below that during the relevant period the appellant No.2 herein was not feeling well, no medical certificate was produced on record and in absence of any evidence on record that the appellant No.2 was suffering from an ailment, the appellate Court was right in rejecting the ao88.10 6 application for restoration of the appeal. The learned Counsel for respondents also invited my attention to paragraphs 7, 8 and 9 of the impugned order and submitted that the reasons recorded by the appellate Court in support of its order are based upon the evidence brought on record by the parties. He, therefore, submits that this Court may not interfere in the impugned order. 5. I have given due consideration to the submissions advanced by the learned Counsel appearing for the respective parties. It is not in dispute that the appellants had engaged services of advocate to represent their case. On the date on which appeal was fixed for hearing, the appellants were not present in the Court and also their advocate was not present. However, the appellants' presence on the date when the appeal was fixed for hearing was not mandatory. Even, presence of the advocate of the appellants would have been sufficient. However, the advocate for the appellants remained absent. Therefore, the appellate Court dismissed the ao88.10 7 appeal in default. 6. When the application for restoration of the appeal was taken up for hearing by the District Judge-1, Nilanga, the appellant No.2 examined himself and stated before the Court that he was suffering from temperature and cough from 5.11.2005 to 11.11.2005 and the doctor advised him to take bed rest. So, he could not attend the Court and instruct the advocate. It is true that in normal course, a medical certificate should have been placed on record. However, the fact remains that the appellant No.2 examined himself before the Court on oath and his statement on oath should not have been discarded so easily. Secondly, the advocate who was engaged by the appellants did not remain present on the date of hearing of the appeal. Therefore, due to the mistake of the advocate, the appellants should not suffer. The presence of the appellants was not necessary on 9th November, 2005. In that view of the matter, in my opinion, for the mistake of the advocate, the appellants should not suffer and their valuable right of ao88.10 8 appeal should not get defeated. 7. It is also not in dispute that the application was filed by the appellants for restoration of the appeal on 24.11.2005 i.e. within fifteen days from the date of passing of the order dismissing the appeal in default. I find considerable force in the argument of the learned Counsel for the appellants that the facts of this case are almost similar with the facts in case of Annasaheb Virupaksha Bidre (supra). In that case also the appeal filed by the appellant therein came to be dismissed in default for non presence of the appellant and his advocate. The ground taken by the appellant was that he was old and on the date of hearing, his presence in the Court was not mandatory. However, the appellate Court dismissed the application for restoration. Aggrieved by the said order, the appellant therein filed appeal from order before this Court. This Court, accepting the contention of the appellant therein that, due to mistake of the advocate, the ao88.10 9 litigant should not suffer and his valuable right of appeal should not get defeated, restored the appeal by setting aside the order of dismissal of the appeal in default. In that case also, no medical certificate was submitted by the appellant therein. However, this Court took a view that, merely because the appellant did not produce medical certificate, that cannot be a ground to dismiss the application. In that case, the application for restoration of appeal came to be allowed by imposing cost of Rs.5000/- on the appellant therein. 8. Taking overall view of the matter, I am of the opinion that ends of justice will meet if the impugned order is stayed by imposing cost of Rs. 10,000/- on the appellants herein. 9. In the result, following order is passed: The impugned order passed by the District Judge-1, Nilanga on 25th March, 2010 below Exh.1 in Civil M.A. No.45/2005 is set aside. The order dated 9th November, 2005 passed by the Adhoc ao88.10 10 Addl. Dist. Judge, Nilanga in RCA No.51/2002 is also quashed and set aside. The R.C.A. NO. 51/2002 is restored to its original file. The appellant should deposit Rs.10,000/- towards costs before the District Court, Nilanga within four weeks from today. It is made clear that unless the amount of costs is deposited, the R.C.A. NO.51/2002 will not get revived. After deposit of the costs by the appellants, the respondents will be entitled to withdraw the same amount by making formal application for withdrawal of the said amount. The Appeal From Order is allowed to the above extent and the same is disposed of. [ S.S. SHINDE ] JUDGE. ... PLK/*