*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3411/2009 M/s Vaibhav Constructions. ..Petitioner -VERSUS- Shilanda Co-operative Housing Society Ltd. ..Respondent ............... Mr.A.M.Joshi, Advocate for the Petitioner. None for the Respondent. ............... CORAM: A.P. DESHPANDE, J. Dated 04th December, 2009. PC:- 1 Heard the learned counsel for Petitioner. 2 At the outset, my attention is invited to the order passed by this Court dated 24.09.2009, on which date, despite service of notice no one had appeared for the Respondent and hence, this Court directed issuance of a fresh notice to the Respondent for final disposal of Writ Petition at admission stage and made it returnable on 13.11.2009. The said notice has been duly served on Respondent. Despite service, none appears for the Respondent. Hence, taken up for final disposal. 3 The present Petitioner is the original Plaintiff who instituted a suit against the Respondent for recovery of money. During the pendency of the said suit, the Trial Court appointed an Arbitrator for settlement of dispute between the parties vide order dated 04.05.1997. At the time of making reference to the Arbitrator, the suit was numbered as 357/1990, however, after receipt of final arbitral award the suit came to be renumbered as 3549/2000. It *2* appears from the record that there were two suits, however, those suits were not on the file of the same Court but same were assigned to different Court. The Arbitrator submitted a report to the Court in both suits. Perusal of the report clearly reveals that the Arbitrator has decided the matter in favour of the present Petitioner/ Plaintiff and directed the Respondent/Defendant to pay a sum of Rs. 65,320/- along with interest at the rate of 15% per annum to the Petitioner. Interest is granted from September, 1987 till the date of payment. Payment has been directed to be made within a period of three months from the date of award. The award is dated 21.06.1998. After receipt of report from the Arbitrator, the parties were again issued notices. It is case of the Petitioner that he was informed that the original record of both suits were misplaced or missing. It is further case of the Petitioner that his Advocate informed him that arbitral award has not been challenged by the Defendant and thus, a decree will be passed in favour of the Petitioner/ Plaintiff. However, on account of missing of record, the Petitioner could not keep track of the case. Hence, in one of the suits, the Trial Court on account of absence of the Petitioner and his Advocate, passed an order of dismissal of the suit in default. When the Petitioner came to know of the same, he immediately moved an application for condonation of delay and for restoration of the suit. All the relevant details and particulars are set out in the application filed by the Petitioner seeking condonation of delay in filing an application for restoration of the suit. 4 The absence of Petitioner can never be termed as deliberate or intentional for the obvious reason that the Arbitrator *3* has passed an award in favour of the Petitioner and he is expecting a decree in terms of award to be passed by the Civil Court. In that view of the matter, I am of the clear view that the Trial Court ought to have condoned the delay and restored the suit. 5 Perused the impugned order, the same does not take a pragmatic view of the matter while considering the application for condonation of delay. What is to be seen is that the Arbitrator has passed an award in favour of the present Petitioner and in that view of the matter, the absence of Petitioner before the Trial Court, which prompted the Trial Court to dismiss the suit for non prosecution, is not deliberate and intentional. The Respondent has not put in appearance despite service of notice and the present Writ Petition is not opposed. I am of the clear view that by setting aside the impugned order and by condoning the delay in filing the restoration application, ends of justice would be met. Hence, I proceed to allow the Writ Petition. 6 In the result, the impugned order is quashed and set aside. The application for condonation of delay in filing the application for restoration of the suit moved by the Petitioner is allowed. The delay stands condoned. The Trial Court shall proceed to decide the application filed by the Petitioner for restoration of the suit. Rule made absolute in the above terms. (A.P. Deshpande, J)