1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.11624 OF 2008 IN SECOND APPEAL NO.136 OF 1989 Bajirao s/o Marotrao Kshirsagar, R/o-House No.2-6-72, Nageshwarwadi, Aurangabad. ...APPLICANT. VERSUS Smt. Savitribai w/o Bajirao Kshirsagar, R/o-Dondiramuala Wada, Begampura, Aurangabad and another ...RESPONDENTS. ... Mr.V.M. Maney Advocate h/f. Mr. V.M. Kendre Advocate for Applicant. Mr.R.R. Suryawanshi Advocate for Respondent No.1 Mr.R.B. Bhosale Advocate for Respondent No.2. ... CORAM: K.K. TATED, J. DATE : 17TH JUNE, 2009. PER COURT : 1. Heard learned counsel for the parties. 2 2. Present Civil Application preferred by the original Appellant for restoration of Second Appeal No.136 of 1989 which was dismissed for default as per order dated 9th September, 2008. Present Civil Application preferred by the Applicant 15th September, 2008 without filing affidavit in support of the Civil Application. It is the contention of the learned counsel for Applicant that Advocate on record Mr. Kendre is not attending the Court due to his personal difficulties since last four months. Mr. Kendre Advocate directed to Mr. Maney Advocate to conduct his matters. It is the case of the Applicant that the Advocate to whom the matter was handed over to conduct, on that day went to see the position in the other Court and in meanwhile the matter called out and the same was dismissed for default. In view of these facts learned counsel for the Applicant submits that in the interest of justice, the order dated 9th September, 2009 to be recalled and Second Appeal to be restored on file on its original position. 3. On the other hand, learned counsel for Respondent No.1 filed affidavit in reply to oppose the present Civil Application. Learned counsel for Respondent No.1 raised objection about maintainability of the present Civil 3 Application for non filing of an affidavit in support of the same. He submitted that as per Rule 24 of Chapter IV of the Bombay High Court Appellate Side Rules, 1960 it is necessary to file an affidavit in support of the Civil Application. Rule 24 of the Bombay High Court Appellate Side Rules, 1960 reads as under: 24. (i) When Civil Applications should be supported by affidavits. - All Civil Applications excepting those mentioned below shall be supported by affidavits:- (a) Application for fresh service of notice at the same address which is within time, (b) Application for leave to appeal to the Supreme Court. (c) Application for leave to appeal under Clause 15 of the Letters Patent. (d) Application for review where the only ground for review is a mistake or error apparent on the face of the record. (ii) Special provision in regard 4 to Civil Revision Applications. - Notwithstanding anything contained in this rule, an application for the exercise of the revisional jurisdiction of the High Court need not be supported by an affidavit except to the extent provided in rule 21 of this Chapter. (iii) Registrar s power to dispense with affidavits. - The Registrar may by a general or special order dispense with affidavits in particular cases or particular classes of case. (iv) Where affidavit is not filed in time the matter to be immediately placed before Registrar for orders. - Where a party or an Advocate fails to remove office objections relating to the filing of the affidavit within the time allowed in that behalf, the matter shall be placed for orders before the Registrar immediately after the expiry of the said period. The Registrar may either dispense with the filing of the affidagvi5t or pass such other order or orders as he may deem 5 necessary. 4. It is clear from Rule 24 of the Bombay High Court Appellate Side Rules, 1960 that except in exceptional cases stated therein, it is the duty of the Applicant to file affidavit in support of the Civil Application. In present case there is prayer clause (C) in Civil Application for dispensing the affidavit in support of the Civil Application. In view of Rule 24 as quoted herein above, prayer Clause (C) cannot be granted. 5. Mr. Suryawanshi, learned counsel for Respondent No.1 further submitted that Advocate on record Mr. V.M. Kendre has not signed the present Civil Application nor he filed affidavit in support of the present Civil Application. It is clear that present Civil Application is signed by Advocate Mr. Maney without any Vakalatnama and or written instructions either from the Applicant and/or from the Advocate on record. Not only that Advocate Mr. V.M. Maney also filed his affidavit in support of present Civil Application. Learned counsel for Respondent No.1 opposed to consider the said affidavit of Advocate Mr. Maney in support of present Civil Application. Mr. Suryawanshi, 6 learned counsel for Respondent No.1 further submitted that on 9th September, 2008 when the matter was called out in the morning session, no one appeared on behalf of the Appellant and therefore the matter was kept back in afternoon session. In afternoon session also no one appeared on behalf of the Appellant and therefore the Second Appeal came to be dismissed under Order 41 Rule 17 of the Code of Civil Procedure. These facts are narrated by Respondent no.1 in his affidavit in reply in Para 6, which reads as under: The deponent submits that the Advocate of the applicant/ appellant namely Shri V.M. Mane has filed the4 Civil Application without swearing affidavit by the applicant/ appellant. The Advocate Shri V.M. Maney is not on record on before of applicant/ appellant, as there is no V.P. Filed on record by Shri V.M. Maney. In fact V.P. Filed by Advocate V.M. Kendre, who is on record as Advocate of the applicant, who has not signed the Civil Application. Therefore, the deponent is strongly opposing for restoration of Second Appeal, as the Civil 7 Application is neither swear by the applicant/appellant nor the V.P. is signed by Shri V.M. Maney. Therefore, the present Civil Application for restoration is not at all maintainable and the Second Appeal may not restored. The Civil Application is also not maintainable on the ground that the same is circulated after lapse of 8 months. On this ground also the Civil Application for restoration is not maintainable, as the reasons given in Civil Application for restoration are also not believable. Therefore, the respondent/ deponent is strongly opposing the Civil Application for restoration. The deponent submits that this Honorable Court kept the matter for hearing on 9/9/2008 in morning session. In the morning session, nobody was present on behalf of applicant/appellant. Therefore, this Honorable Court kept back the matter in the afternoon sessions. In the afternoon session also, nobody was present on behalf of applicant/appellant. Therefore, this Honorable Court has passed the order of dismissing the Second 8 Appeal under Order 41 Rule 17 of the Code of Civil Procedure. 6. It is clear from the record that neither Advocate on record has filed the present Civil Application nor the Applicant filed affidavit in support of present Civil Application. Considering these facts, Civil Application is dismissed with cost of Rs.1500/-. The cost to be deposited in the account of High Court Legal Services Sub Committee, Aurangabad within four weeks from today. 7. Civil Application is disposed of accordingly. (K.K. TATED) JUDGE. asb/JUN09/ca11624.08