( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ FIRST APPEAL NO.556 OF 2009 FIRST APPEAL NO.556 OF 2009 FIRST APPEAL NO.556 OF 2009 Ashabegam Shabbir Khan ..Appellant V/s. The Municipal Commissioner ..Respondent ...... Mr.N.V. Gangal for the appellant Mr.Vinod Mahadik for respondent-BMC ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 5th May, 2009 DATED : 5th May, 2009 DATED : 5th May, 2009 P.C.: P.C.: P.C.: 1. Considering the impugned order dated 20th February, 2009 and point involved therein, I am of the view that the first appeal can be disposed of. Hence, the first appeal is admitted. Learned advocate Mr.Mahadik waives service on behalf of the respondent Corporation in the first appeal. The first appeal is taken up for hearing forthwith. 2. The appellant herein instituted L.C.Suit No.5080 of 2006 in the City Civil Court at Bombay. By the said suit, the appellant sought declaration that notices dated 4th September, 2006 and 12th September, 2006 be declared as null and void. Summons in the aforesaid suit was served upon the respondent Corporation and the suit was pending as of 20th February, 2009. ( 2 ) 3. On 20th February, 2009 one person appeared in the suit on behalf of the appellant and produced the medical certificate issued in favour of the appellant wherein it was mentioned that the appellant is required bedrest for three months. The learned Judge of the City Civil Court, Bombay (hereinafter referred to as the ’learned trial Judge’) on 20th February, 2009 dismissed the suit for default. This dismissal of the suit constitutes a decree in the suit and therefore the appellant has challenged this judgment and decree dated 20th February, 2009. 4. Before this Court learned advocate Mr.Gangal appearing on behalf of the appellant submitted that the person who appeared before the learned trial Judge on 20th February, 2009 was the husband of the appellant and he had produced the medical certificate showing that the appellant was unable to come and she required rest as she was not well. Learned advocate Mr.Gangal submitted that the learned trial Judge went into the question of execution of Power of Attorney in favour of husband of the appellant and when he came to the conclusion that no such power of attorney is executed in favour of husband of the appellant and when he noted that the advocate for the appellant is absent, he treated that the appellant is absent and he ( 3 ) dismissed the suit. The impugned order is as follows. "Order :- Adv. absent. Plff. absent. The person, who presented this appln. is not C.A. of plff. No Power of Attorney is filed on record. Appln. is also a zerox. Signature is also in zerox. Hence, appln. rejected. Suit is dismissed in default of plaintiff. No costs." 5. Learned advocate Mr.Gangal submitted that on the relevant date i.e. 20th February, 2009, advocate for the appellant could not remain present and on account of sickness, the appellant could not remain present and therefore the appellant had deputed her husband to take adjournment in the suit. According to learned advocate Mr. Gangal, the learned trial Judge ought to have taken a practical view of the matter and granted adjournment rather than sticking to strict view that the husband had no power of attorney. Learned advocate Mr.Gangal submitted that the learned trial Judge had failed to take practical view in the matter and he was hyper technical and that is how he dismissed the suit. Learned advocate Mr.Gangal submitted that the learned Judge ought to have been lenient and granted adjournment on the relevant date particularly because it is not the case of the ( 4 ) Corporation that the appellant has been remaining absent on a regular basis. Learned advocate Mr.Gangal submitted that in the interest of justice learned trial Judge ought to have granted an adjournment at least for 1 or 2 days to enable the advocate for the appellant to remain present and attend to the matter. He, therefore, submitted that the impugned judgment be set aside and the suit be restored to the file of the Court and the appellant be given an opportunity to prosecute the suit in accordance with the provisions of law. 6. Learned advocate Mr.Mahadik appearing on behalf of the respondent submitted that the impugned order passed by the learned trial Judge is in consonance with the provisions of law in as much as the husband of the appellant was not duly empowered to appear on behalf of the appellant and therefore the learned trial Judge rightly treated that the appellant and her advocate are absent. 7. I have considered the rival submissions. I have perused the impugned order. In my view, the learned trial Judge ought to have used discretion conferred on him while deciding the particular matter and he should have granted an adjournment to the appellant and given a chance to the appellant to see ( 5 ) that she is represented by a lawyer. The learned trial Judge failed to take practical view of the matter. In a given case, if a litigant is unable to remain present before the Court and on the very day the advocate for such a litigant is also unable to remain present and advocate for such a litigant is unable to make an alternate arrangement in view of excigiencies of situation and if the litigant deputes his or her close relatives to mention to the Court that both the litigant and the advocate are unable to remain present before the Court, the Court is expected to see that no harsh order is passed and Court is expected to adjourn the matter particularly when it is not shown that the litigant is intentionally avoiding to appear before the Court or the litigant is acting in such a way that the interest of other side is affected. 8. I am in agreement with the submissions advanced by learned advocate for appellant and in the peculiar facts and circumstances of this case, I am inclined to observe that the impugned order passed by the learned Judge of the City Civil Court is required to be set aside and the appellant is required to be given a chance to put up her case before the Court in accordance with the provisions of law. In my view, there is a merit in the first appeal and the judgment ( 6 ) and decree dated 20th February, 2009 is required to be set aside. The suit is required to be restored to the file of the City Civil Court, Bombay. 9. For the reasons mentioned aforesaid, first appeal is being disposed of by passing following order. ORDER ORDER ORDER . The judgment and decree dated 20th February, 2009 passed by the Judge of the City Civil Court, Bombay in L.C.Suit No.5080 of 2006 is set aside. The L.C. Suit No.5080 of 2006 is restored to the file of City Civil Court, Bombay. It is hereby ordered that the Principal Judge, City Civil Court, Bombay shall now assign this suit to some other Judge for deciding the same in accordance with provisions of law. . Registry to forward the Writ of this order to the Principal Judge, City Civil, Court, Bombay on or before 11th June,2009. There shall be no order as to costs. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)