1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2769 OF 2009 Shri Ramesh Baban Tupe & Ors. ..Petitioners. V/s. Mr.Popatrao Jaisingh Khilare & Ors. ..Respondents. Mr. G.S.Godbole i/b. A.B. Tajane for petitioners. Mr. P.K. Dhakephalkar, senior Advocate i/b. S.R. Ganbavale for respondents. CORAM : J.P.DEVADHAR, J. DATED : 10TH JULY, 2009. P.C. :- 1. Heard learned counsel for the petitioners and the respondents. Rule. Rule, made returnable forthwith. By consent of the parties the petition is taken up for final hearing. 2. This petition is filed to challenge the order dated 2/3/2009 passed by the District Judge, Pune in Civil Appeal No.309/07 whereby the application filed by the petitioner for restoration of the Appeal has been dismissed. Mr. Godbole, learned counsel for the petitioners fairly stated that a lenient view be taken in the matter and if necessary subject to payment of costs, because in the present case, the application for restoration is made on the same day. 2 3. On perusal of the order passed by the learned trial Judge on 2nd March, 2009 (Exhibit "G" at page 59 of the petition), it is seen that the learned Judge has dismissed the appeal mainly on the ground that the petitioner has been unduly delaying the disposal of the Appeal. From the said order, it is seen that the petitioner had sought as many as 18 adjournments. Moreover, on 2/3/2009 the petitioners had presented an application for transferring the matter from the Court of the learned District Judge. However, when the Appeal was repeatedly called out between 11.00 a.m. to 1.30 p.m. neither the petitioner nor his Advocate appeared in the matter. In these circumstances, the argument of Mr.Dhakephalkar, learned senior Advocate for the respondents that the learned District Judge was justified in dismissing the appeal deserves acceptance. 4. Moreover, the conduct of the petitioner in stating in the application for restoration that the appellant was present in the Court from 11.00 a.m. is totally unjustified and unfair to the Court. The anguish expressed by the learned District Judge and reiterated by Mr. Dhakephalkar regarding the conduct of the petitioners cannot be brushed aside. 5. However, irrespective of the fact that the conduct of the petitioners is highly deplorable, in view of the fact that the application for restoration was made on the very same date, in my view, interest of justice would be met if the appeal is restored to the file of the learned District Judge, Pune subject to payment of exemplary costs. Mr. Dhakephalkar submitted that the costs awarded may be directed to be paid to the District Court Legal Aid Committee, Pune. 3 6. Accordingly, the petition is allowed and the impugned orders both dated 2nd March, 2009 are quashed and set aside and Appeal No.307 of 2009 is restored to the file of District Judge, Pune subject to petitioners depositing costs quantified at Rs.25,000/- with the District Court Legal Aid Committee, Pune within a period of 10 days from today. 7. On such deposit being made, the above appeal be placed for hearing before the learned District Judge, Pune on 27th July, 2009 by which date, the petitioners shall submit their written submissions with a copy to the respondents. The learned District Judge, Pune is directed to dispose of the said appeal within a period of 2 months thereafter. 8. The Writ Petition is disposed of accordingly with no order as to costs. (J.P.DEVADHAR, J.)