: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1196 OF 2008 Ananda Nanu Mozer & Ors. ... Appellants V/s. Narayan Nana Mozer & Ors. ... Respondents Mr.P.B. Shah for Appellants Mr.P.B. Gujar for Respondent Nos.1(a) to 1(d) CORAM: SMT.NISHITA MHATRE, J. DATED: JANUARY 18, 2010 P.C.: 1. The appellants are the heirs of the original appellant. They contend that the order dated 26.8.2008 rejecting their application for restoration of their appeal is incorrect. It is submitted that the suit was filed by the original plaintiff for partition and possession of certain properties. That suit was dismissed on the ground that it was not maintainable. Being aggrieved by that order, the plaintiff filed an appeal which was belated. The application for condoning the delay was decided on 24.4.2005 and the delay was condoned. On 29th July 2005, the appeal was fixed for hearing. However, it was dismissed for default on that date. An application for restoration was filed on 10.10.2005. Since there was a delay, an application was filed for condoning the same. That delay was condoned. However, the restoration application was rejected on 26.8.2008. : 2 : 2. It is submitted on behalf of the appellants that they expected their constituted attorney to attend the matter. It is further submitted that the constituted attorney was staying at Mumbai and therefore it was not possible for the attorney to attend the matter. It is further submitted that undisputedly, the applicants had engaged an advocate who was absent on the day in question. According to the learned advocate for the appellants once an advocate is engaged in an appeal he is expected to appear before the Court and argue the appeal even in the absence of the appellants. In these circumstances, he submits that the appeal be restored to file. 3. The learned advocate for the respondents submits that this is one more method adopted to delay the litigation which is pending from 1992 between the parties. He submits that in an earlier round of litigation, the partition of the properties had already been effected and therefore the suit had been dismissed. He further submits that despite the imposition of costs, the appellants have not cared to be vigilant and to attend the matters. According to him, the order impugned has rightly been passed. 4. Having heard the learned advocates and on a perusal of the impugned order, in my opinion, it will have to be set aside on certain terms and conditions. It appears from the record that the delay in filing the application for restoration was condoned on payment of costs on 24.4.2006. However, the appeal has not been restored to file. It appears from the impugned order that the Court has not taken into consideration the fact that the appeal paper book was filed and an advocate had been engaged by the appellant. In these circumstances, it was necessary for the advocate to attend the : 3 : matter, even assuming the constituted attorney of the appellant was not present on a given date. There is no discussion at all in the order about the negligence on the part of the advocate. 5. In my view, on a consideration of the impugned order and the facts and circumstances of the case, the appeal must be allowed. Accordingly, the application for restoration of the appeal is allowed on payment of costs of Rs.5,000/- to the respondent within four weeks from today. Payment of costs is condition precedent for the appeal to be heard. If no costs are paid within the stipulated period, the earlier order will revive. 6. Appeal from Order is disposed of accordingly.