1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.6213 OF 2007 Shri Manoj Vasantrao Adayprabhu Petitioner vs. Panchavati Nagari Consumers Co-op. Society Ltd. & ors. Respondents Mr.Anilkumar Patil for the petitioner. Mr.Kishor Patil ib. Mr.P.N.Joshi for respondent no.1. CORAM : R.V. MORE,J. DATED : 23rd July, 2008 P.C. Heard the learned counsel for the respective parties. 2. Mr.Patil, the learned counsel for the petitioner, seeks leave to delete the names of respondents 2 and 3. Leave granted. The petitioner to carry out the amendment in the cause title of the petition forthwith. 3. Rule. By consent, rule is made returnable forthwith. 4. By the impugned order dated 28.03.2006, the learned Member of the Maharashtra State Co-operative Appellate Court, Mumbai rejected the Restoration Application 2 No.2/2005. 5. The facts for the purposes of disposal of this petition are as follows: . Respondent no.1 is a Consumer Society registered under the provisions of the Maharashtra State Cooperative Societies Act, 1960 (for short, "the said Act"). Respondent no.2, who is the employee of respondent no.1, has misappropriated funds of respondent no.1 and, therefore, respondent no.1 filed dispute under Section 91 of the said Act for recovery of amount of misappropriation to the extent of Rs.79,003.35 ps. The petitioner was impleaded as opponent no.3 in the abovesaid dispute as he had given certificate of good character to respondent no.2. 6. The above dispute came to be allowed exparte by the Cooperative Court by its order dated 26.08.2002 and, therefore, the petitioner has applied for setting aside the said exparte order. The petitioner’s application was dismissed by the Cooperative Court on merits and, therefore, the petitioner was constrained to file an appeal in the Cooperative Appellate Court at Mumbai. Since there was short delay of three days in filing the appeal, the petitioner filed separate application for condonation of delay i.e. Misc. Application 3 No.1697/2004. This application for condonation of delay was also dismissed for default on 12.1.2005. The petitioner thereafter filed another application bearing No.2/2005 for restoration of Misc.Application No.1697/2004 and this application is rejected by the order which is impugned in the present petition. 7. Mr.Patil, the learned counsel for the petitioner, submitted that the petitioner is from Nashik and he has engaged an Advocate from Bombay. The said Advocate from Bombay could not remain present and, therefore, the miscellaneous application for condonation of delay as well as subsequent application for restoration of this misc. application came to be dismissed in default. He further submitted that the petitioner should not be punished for the fault of the Advocate. Mr.Patil, the learned counsel for respondent no.1, per contra, supported the impugned order. 8. Having heard the learned counsel for the respective parties and having gone through the impugned order, in my considered opinion, the petitioner’s application for restoration deserves to be allowed and the prejudice, if any, caused to respondent no.1 can be compensated by asking the petitioner to pay cost. Exhibit "H" at page 39 is the letter dated 27.9.2005 written by the petitioner’s local Advocate to the Advocate who filed 4 appearance on behalf of the petitioner in the appeal. The letter shows that the petitioner was not negligent and he used to enquire with the Advocate at Bombay about the progress of the matter pending before the Cooperative Appellate Court at Mumbai. Perusal of the impugned order reveals that the application for condonation of delay as well as subsequent application for restoration dismissed for non-appearance of the petitioner’s Advocate and in my view, the litigant should not be punished for the fault of the Advocate. The petitioner has given sufficient cause and, therefore, petitioner’s application for restoration deserves to be allowed subject to payment of cost to respondent no.1. 9. In the facts and circumstances of the case, I dispose of the writ petition by the following order: ORDER ORDER ORDER (i) The impugned orders dated 28.3.2006 passed by the Member, Maharashtra State Cooperative Appellate Court, Mumbai in Restoration Application No.2/2005 as well as the order dated 12.1.2005 dismissing the petitioner’s Misc. Application No.1697/2004 in default, are quashed and set aside and the petitioner’s Restoration Application No.2/2005 is allowed and the Misc. 5 Application No.1697/2004 is restored to file, subject to the petitioner’s paying the cost, quantified at Rs.3,000/- to respondent no.1 within a period of two weeks from today. 10. Rule is made absolute accordingly. [R.V. [R.V. [R.V. MORE,J.] MORE,J.] MORE,J.]