1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8215 OF 2009 Vishnu S/O Maruti Wani ...Petitioner vs. Martui Thakuji Gawade ...Respondent Mr.Rajesh Kachare for the petitioner Mr.P.B.Shah, for the respondent CORAM :A.S.OKA,J. DATE : AUGUST 20, 2009 P.C. 1 The submissions of the learned counsel for the parties were heard on the last date. The challenge in this writ petition under Article 227 of the Constitution of India is to the order datd 6th August 2008 passed by the trial court. By the said impugned order, an application made by the petitioner for restoration of the suit has been rejected by the trial court. 2 On 20th September 2003, the suit filed by the petitioner was dismissed in default by the trial court. On 13th October 2003, an appliction for restoration was made by the petitioner. In the said application, the petitioner came out with a case that on 20th September 2003 he was unwell and his Advocate was at Mumbai. The said application was contested by the respondents. The trial court directed the parties to lead evidence. One Shankar, the brother and constituted attorney of the petitioner filed his affidavit in lieu of examination in 2 chief. He stated that he was regularly appearing in the said suit as the constituted attorney of the petitioner. He stated that he could not remain pressent on 20th September 2003 as he was unwell. He stated that on that day his Advocate was away in Mumbai. The learned trial Judge after considering the evidence came to the conclusion that the petitioner (original plaintiff) has not given any power of attorney to his brother Shankar who stepped into witness box. The learned Judge observed that there was no evidence to show that the petitioner was himself unwell on 20th September 2003. The learned Judge came to the conclusion that there was no sufficient cause. 3 The learned counsel for the petitioner pointed out that the learned trial Judge has taken a hyper technical approach. He pointed out that the petitioner s brother stepped into witness box as he was acting as the constituted attorney of the petitioner. He submitted that the evidence of the brother of the petitioner makes out a case of existence of sufficient cause for absence on 20th September 2003. The learned counsel for the respondent invited my attention to the cross examination of the said Shankar and submitted that the application for setting aside the exparte decree was not filed by the petitioner himself and there is no power of attorney executed in favour of his brother Shankar who filed the said application. He, therefore, submitted that no 3 interference is called for. 4 The learned counsel for the petitioer has produced a certified copy of list of documents produced along with the suit as well as the certified copy of the power of attorney executed by the petitioner in favour of the said Shankar. 5 I have carefully considered the submissions. The certified copies referred to above tendered on record show that the power of attorney was executed by the petitioner in favour of the said Shankar on 17th July 1995 before a Notary Public and the original power of attorney was produced along with a list in the suit in the year 1995 itself. The said power of attorney authorises to the petitoner s brother Shankar to represent the petitioner in the litigations. 6 Therefore, the said constituted attorney was empowered to file the application for restoration. Perusal of affidavit in lieu of evidence of the petitioner s brother Shankar shows that a case is made out that on 20th September 2003, the said constituted attorney was unwell and in fact medical certificate of the said constituted attorney was produced which shows that the constituted attorney Shankar was under medical treatment from 18th September 2003 to 24th September 2003. This certificate becomes relevant because it was the petitioner s brother as the constituted attorney was prosecuting the suit behalf of the petitioner. The 4 application for restoration was also competent. It is pertinent to note that the suit was dismissed on 20th Septmber 2009 and the present application for restoration was filed on 13th October 2003. Considering all the aforesaid aspects,justice oriented approach ought to have been adopted while dealing with the application for restoration. The prejudice which may be caused to the respondent can be taken care of by awarding suitable amount by way of costs to the respondent. 7 Hence, I pass the following order : i)Impugned Judgment and order dated 6th August 2008 is quashed and set aside and Civil Misc. Application no. 21 of 2003 is allowed. Accordingly, R.C.S.No.270 of 1995 is restored to the file of the trial court. The trial court will expeditiously dispose of the suit. ii)The petitioner is directed to pay costs of Rs. 7500/- to the respondent. A demand draft in the sum of Rs.7,500/- has been handed over by the Advocate for the petitioner to the Advocate for the respondent which is drawn in the name of the respondent. The said demand draft has been accepted by the learned by the learned counsel for the respondent without prejudice to the rights and contentions of the respondent. iii)Writ Petition is allowed in above terms. JUDGE