1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3762 OF 2008 IN CIVIL APPLICATION NO.2819 OF 2005 IN CIVIL APPLICATION NO.2608 OF 2005 IN FIRST APPEAL NO.148 OF 1997 Noorbanoo A. Baliwala & Ors. .. Applicants versus Durriyay D. Baliwala .. Respondent ... Mr.Ajit Karvande, Mr.Ashish Mishra and Krunal Prachale i/b B.Amin & Co. for applicant. Mr.U.J. Makhija Sr.Advocate i/b Mulla & Mulla for the respondent. CORAM : D.G. KARNIK, J DATED : 21st November 2008 P.C.: 1. Heard counsel for the parties. 2. This application is taken out by the applicant for setting aside the order dated 28th February 2008 passed by this court dismissing civil application no.2608 of 2005 in default of appearance 2 of the appellant. 3. The appellant has stated that he had previously appointed one Mr.Manoj Bhatt as an advocate in the matter. However, he subsequently changed the advocate and appointed Mr.M.A. Khan as his advocate. Counsel submitted that when the matter appeared on board on 28th February 2008, name of Mr.Khan was not shown on the board. This is supported by a copy of the Board filed on record. The applicant and his advocate were, therefore, not aware that the matter was listed on the board and therefore they did not remain present. In my view, this is a sufficient cause for their absence and the matter be restored to file. 4. Counsel for the respondent, however, submitted that Mr.Bhatt had never filed vakalatnama in the matter though he had been appearing for the applicant. When Mr.Khan filed vakalatnama for the applicant he had not taken "No Objection" from Mr.Bhatt and therefore vakalatnama of Mr.Khan was in objection. Consequently name of Mr. Khan was not shown on board and office cannot be faulted for not showing the name of Mr.Khan on board. He therefore submitted that the restoration application should not be allowed. 3 5. In my view, submission of the counsel for the respondent is misconceived. The issue here is not whether the office was in fault in not showing the name of Mr.Khan on board but whether the applicant had sufficient cause for remaining absent. Admittedly, name of Mr.Khan was not shown on board and therefore, applicant and his advocate were not aware of the matter being listed on board. This, in my view, constitutes sufficient cause for absence. 6. Even otherwise, I fail to see how the office could have insisted upon "No Objection" from Mr.Bhatt, advocate before accepting the vakalatnama of Mr.Khan because Mr.Bhatt had not even filed a vakalatnama in the matter. Office, therefore, ought not to have insisted upon "no objection" of Mr.Bhatt and ought to have been shown the name of "Mr.Khan" on board. 7. For these reasons, I am satisfied that there is a sufficient cause for the applicant and his advocate to remain absent and the order needs to be recalled. Accordingly, order dated 28th February 2008 is recalled and Civil Application no.2608 of 2005 is restored to file. 4 (D.G. KARNIK, J)