vsa 1 CRA990_2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 990 OF 2010 IN REVISION NO. 24 OF 2010 IN MISC. NOTICE NO. 124 OF 2009 IN R.A.E. & R. SUIT NO. 217/424 OF 1997 New Fair Cooperative Housing Society Ltd. .... Applicant vs. M/s. Bryam Jeejeebhoy Pvt. Ltd. .... Respondent Mr. U.J. Makhija & Mr. Rampal S. Kohli i/b. Mr. S.R. Ronghe for the Applicant Mr. J.F. Daruwalla for the Respondent. CORAM : A.S.OKA, J. DATE : 17th December, 2011 P.C.: Heard the learned Counsel appearing for the Revision Applicant. The Revision Applicant is the defendant and the Respondent is the plaintiff. A suit was filed by the Respondent in the Court of Small Causes. The suit of the year 1997 was dismissed in default on 7th December, 2004 when both the parties and their respective advocates were absent. On 22nd April, 2009 an application was made by the Respondent for restoration of the suit. One of the grounds taken in the application for restoration was that the advocate, who was a full time retainer advocate of the Respondent Company did not inform the respondent about the dismissal of the suit. It is stated that the said advocate left the office of the Respondent in vsa 2 CRA990_2010 December, 2004. The other ground pleaded is that the Director of the respondent, who was attending to the suit, could not attend the office of the Respondent Company from the year 2001, as his son was suffering from brain tumor, who underwent a surgery in the United States. The application was opposed by the applicant by contending that there was no sufficient cause for the absence of the respondent. The Trial Court, by the impugned order dated 23rd November, 2009 restored the suit. A Revision Application was preferred before the Appeal Bench of the Small Causes Court by the Revision Applicant, which has been dismissed by the Appeal Bench. 2. The learned Counsel appearing for the applicant has taken the Court through the impugned order passed by the Trial Court. He submitted that the ground that Ms. Vinita Parab, Advocate lost track of the suit is wholly untenable, as she was not the advocate on record but she was in-house advocate of the respondent. He submitted that the ground that the Director could not remain present due to illness of his son for a long period of 5 years cannot be accepted. Inviting the attention of the Court to the finding recorded in paragraph 20 of the Judgment of the Trial Court, he submitted that the Trial Court has gone to the extent of recording a finding that even the Revision Applicant was negligent. He relied upon the decision of the Apex Court in the case of Salil Dutta vs. T.M. And M.C. Private Ltd. [(1993) vsa 3 CRA990_2010 2SCC 185]. 3. In the suit of the year 1997, issues were framed on 7th January, 2004. When the suit was dismissed for default on 7th December, 2004, both the parties and respective advocates were absent. The reason assigned in the application for restoration is that the full time retainer advocate for the respondent who was attending to the Court matters of the respondent lost track of the suit and the suit went unattended. It is stated that the said advocate who was a full time retainer of Respondent left the Respondent Company from December, 2004 and the said advocate did not inform the Respondent about the dismissal of the suit. 4. In paragraph 6 of the application for restoration, it is pointed out that in the year 2009 some persons representing the Applicant Society made a suggestion to one of the Directors of the Respondent for settlement. At that time, the Director instructed the advocate of the Respondent to make an enquiry about the matter. The Advocate thereafter informed that the suit was dismissed. Accordingly, the application for restoration was filed on 22nd April, 2009. 5. It is true that the observation made by the Trial Court in paragraph 20 of the impugned order that even the applicant was negligent may not be vsa 4 CRA990_2010 correct. The Trial Court has observed that both the parties and their respective Advocates did not appear before the Court on the date of dismissal of the suit. The fact remains that the advocate appointed by the Respondent was also absent when the suit was dismissed. Nothing is brought on record to show that the advocate of the respondent had informed the respondent about the dismissal of the suit and thereafter the respondent slept over the matter. The Trial Court has imposed costs of Rs. 15,000/- while restoring the suit. The order of the Trial court has been confirmed in the Revision. The explanation given by the Respondent has been accepted by the Trial Court and the suit has been restored subject to payment of costs. Though the observations made by the Trial Court against the applicant in paragraph 20 may not be correct, no fault can be found with the order of the Trial Court by which a suit which was dismissed in default has been restored. As far as the decision of the Apex Court relied upon the applicant is concerned, the Court was dealing with application under Rule 13 of Order IX of Code of Civil Procedure, 1908. In the present case, the case made out is that a full time retainer advocate of the respondent who was looking after the suit, lost track of the suit and before leaving the employment of the Respondent, she did not inform the respondent about the dismissal of the suit. Hence no case is made out for interference. The Revision application is dismissed. vsa 5 CRA990_2010 (A.S.OKA, J)