1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Letters Patent Appeal No. 227 of 2011 in Writ Petition No. 4319 of 2010 (d) Brijkishor Ramsukhji Mishra VERSUS Motiram Sadashiv Deotare and another - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. M. V. Samarth, Counsel for the appellant. CORAM : SMT. VASANTI A. NAIK AND PRASANNA B. VARALE, JJ. DATE : JUNE 17, 2011. Heard Mr. M. V. Samarth, the learned counsel for the appellant/plaintiff. We see nothing wrong with the order passed by the trial court in rejecting the application filed by the appellant for restoration of the Regular Civil Suit, which was dismissed in default, and the order passed by the appellate court confirming the order of the trial court. The Regular Civil Suit was filed in the year 1994 and this Court had directed the trial court to decide the suit by a time bound programme and fix it on day to day basis. The civil suit was fixed for evidence since January, 1998 and several applications were filed by the appellant/plaintiff, 2 seeking adjournment in the matter. Ultimately, the trial court, by an order dated 27/6/2005, dismissed the suit of the appellant/plaintiff in default. It was the case of the appellant/ plaintiff in an application for restoration of the suit that on the relevant date i.e. on 27/6/2005, the counsel for the appellant Shri M. T. Deshpande was unwell and hence, was unable to attend the Court. The respondent, however, tried to point out that the reason of illness was incorrect. From the order-sheet, it was clear that the suit was called out on many occasions, but it was continuously informed to the Court that the learned counsel for the plaintiff was busy in another Court. The Courts considered the fact that various applications were continuously moved by the applicant and his counsel for adjournment of the suit. The Courts further found that the grounds for absence were not substantiated. The learned counsel Shri M. T. Deshpande and his son Shri P. M. Deshpande, Advocate, who had filed their power in their case, had remained absent and no evidence was tendered to support the contention that the counsel for the appellant was absent due to illness. The affidavit of the learned counsel for the appellant was duly considered by the appellate Court while rejecting the prayer of the appellant for setting aside the order of dismissal. The Courts found that not only the Advocates, but also the appellant was at fault as he ought to have remained present before the Court, when the matter was directed to be heard on day to day basis by the High Court or atleast ought to have made some appropriate alternate arrangement. Since, the findings of facts, recorded by both the Courts, were just and proper, the learned Single Judge did not find any reason to 3 interfere in the writ petition. Since, the orders passed by both the Courts are extremely just and proper, the Letters Patent Appeal is dismissed with no order as to costs. JUDGE JUDGE Diwale