1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7424 OF 2008 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. D.S.Manorkar holding for Mr. S.S.Ladda,Advocate for Petitioner. Mr. S.Y.Patil holding for Mr. B.N.Patil, Advocate for Respondent no. 3. .......................... [ CORAM : S.S.SHINDE, J. ] DATE : 07/09/2009. PER COURT : 1. This Writ Petition is filed challenging the Judgment and Order dated 18/9/2008 passed by the District Judge – 2, Aurangabad in M.A.R.J.I. No. 252 of 2008. 2. The back-ground facts of the case are as under. The present petitioner is original plaintiff, who filed R.C.S. No. 123 of 2004 against the respondents for 2 the relief of perpetual injunction and application for temporary injunction was filed in the said Suit. 3. The application for temporary injunction filed by the petitioner came to be rejected on 3/7/2006 by the Civil Judge (J.D.), Vaijapur. Being aggrieved, the present petitioner filed Misc. Civil Appeal No. 104 of 2006 before the District Court, Aurangabad. It is the case of the petitioner that he engaged Advocate Shri. Jagtap, who filed Appeal on behalf of petitioner. It is further case of the petitioner that he was told by his Advocate not to attend the Court and he will be informed about the hearing of Misc. Civil Appeal. Later on, after filing of the Appeal, compromise talks were going on between the petitioner and respondent and he could not contact his Advocate, who was engaged in Misc. Civil Appeal. 4. It is further case of the petitioner that the Advocate engaged by him had not taken steps for serving respondent no. 3. Therefore, the District Judge dismissed Appeal for want of taking steps to serve respondent no. 3. 3 It is further case of the petitioner that as soon as petitioner came to know about it, he applied for certified copy and filed MARJI for restoration of the said Appeal. The restoration application came to be rejected on 18/9/2008. Hence, this Writ Petition. 5. Learned counsel for the petitioner submitted that due to the fault of the Advocate, who was engaged by him, petitioner should not suffer. It is further argued that the Advocate engaged by him, has not taken effective steps to serve respondent no. 3 and that can not be the sole ground for rejection of the application. Learned counsel invited my attention to the pleadings and grounds in the petition and submitted that in the interest of justice, impugned order deserves to be set aside. 6. Learned counsel appearing for the respondent supported the reasons recorded in the impugned order and submitted that in extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India, this Court may not interfere. Therefore, he prayed for dismissal of Writ Petition. 4 7. Heard learned counsel appearing on behalf of petitioner and respondent 3. I am of the considered view that when the Suit itself is at the stage of leading evidence, no purpose would be serve to stay the proceedings in Regular Civil Suit No. 123 of 2004. It is admitted position that no action has been taken by the petitioner against the Advocate, who was engaged by him and in absence of it, the pleadings in the petition that the Advocate was responsible for non service on respondent no. 3, can not be accepted. 8. The contention of the petitioner that the Advocate is responsible for non service on respondent no. 3, is also required to be accepted with caution. A party, who is pursuing the cause, is suppose to take all the necessary steps with the assistance of the Advocate and blaming the Advocate for not serving respondent no. 3, is not acceptable. 9. Viewed from any angle, the impugned order is reasoned order and original Suit itself is at the stage of leading evidence on 18/9/2008. For all these reasons, Writ petition is devoid of 5 any merits and hence the same is dismissed. [ S.S.SHINDE ] JUDGE knp/WP7424.08