1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2419 OF 2008. Pandit S/o Sambhaji Kalyankar, Age 43 years, Occ.Agril., R/o Pandharwadi, Tq.Mudkhed, District Nanded. ... Petitioner. Versus Village Gram Panchayat Pandharwadi, through its Sarpanch Ananda Ramji Gadilwad and others ... Respondents. ... Mrs.S.T.Tambat Dhumal, advocate for the petitioner. Mrs.S.G.Chincholkar, advocate for the Respondent No.1. Mr.Vinesh Solshe, advocate for the Respondent No. 2. Respondent Nos.3 to 5 served - absent. ... CORAM : V.R.KINGAONKAR,J. Date : 12.06.2009. PER COURT 1. Rule. Rule made returnable forthwith 2 and heard finally by consent of the parties. 2. The petitioner filed suit for declaration and injunction (RCS No.466/1998). He and his brothers were the plaintiffs and had engaged advocate Shri P.D.Mene. The issues were framed by the Civil Court. The suit was thereafter posted for hearing. On Scheduled date i.e. 6.4.2005, the petitioner and other co- plaintiffs were found absent. The Civil Court, therefore, dismissed the suit in default. 3. The petitioner submitted that the date of hearing was not known to him because his advocate (Shri P.D.Mene) did not communicate further progress in the suit. It was further submitted that advocate Mr.P.D.Mene was suffering from AIDS and had gone to some unknown place for the purpose of medical treatment. Thus, he was not available for contact. Therefore, the date of hearing could not be gathered by the petitioner and other plaintiffs, so they submitted an application for restoration of the suit U/o IX Rule 4 of the C.P.C. The learned 3 Civil Judge declined to condone the delay of three (3) months and eight days caused in filing of the application and dismissed the application - Misc. Application (RJE) No.162/2005. The appeal was carried to the District Court but the same came to be dismissed as it was found untenable. Hence, the petition. 4. Heard learned counsel for the parties. 5. Crucial question is whether the petitioner and other co-plaintiffs have established existence of sufficient cause to justify their absence on the date of hearing of the suit and, therefore, the restoration is warranted. In this context, it may be noticed that an affidavit was filed before the learned Civil Judge to the effect that the concerned lawyer was incommunicable due to serious disease and because of the fact that he was required to take treatment at some unknown place. It was brought to the notice of the learned Civil Judge that Shri Mene, suffered from AIDS. This is a ground which could be regarded as sufficient one 4 to justify absence of the petitioner and other co-plaintiffs. For, the lawyer was required to obtain medical treatment at a clandestine place in view of the nature of disease. It is more probable that the nature of the disease was not disclosed by the lawyer to the petitioner and other co-plaintiffs. There was no substantial reason for the petitioner to remain absent on the date of hearing when the suit was being pursued up till that stage. 6. On behalf of the Respondents,learned advocates would submit that filing of the appeal before the District Court was impermissible and wrongly the remedy was sought by the petitioner. It is true, that the petitioner improperly filed Misc.Civil Appeal No.49/2006. The advise of the advocate could have been taken by the petitioner. The petitioner is an agriculturist and has no legal acumen. Considering the fact that his absence on date of hearing could not be regarded as intentional one, I am of the opinion that the learned Civil Judge ought to have allowed the delay condonation application. The view taken by 5 the learned Civil Judge is quite dogmatic and improper. The delay deserves to be condoned. The impugned order suffers from arbitrariness and impropriety. 7. For the reasons aforestated,the impugned judgments are quashed. The petition is allowed. Rule is made absolute accordingly. The learned Civil Judge shall hear the restoration application and decide the same on its own merits by condoning the delay. (V.R.KINGAONKAR,J.) asp/office/wp241908