IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1268 OF 2005. Latika Babasaheb Dhale and another. .... PETITIONERS. VERSUS Mahadeo Eknath Birgal and ors. .... RESPONDENTS. ... Shri Anand Bhandari, Advocate holding for Shri S.V. Gangapurwala, Advocate for petitioners. Shri D.S. Gandhi, Advocate for R.No.1 (absent). ... CORAM : S.S. SHINDE, J. DATE : 12th AUGUST, 2009. PER COURT: 1. This writ petition is directed against the order dated 30th December, 2003 below Exh.50 in R.C.S.No.90/1999 passed by the C.J.J.D., Jamkhed. It is the case of the petitioners, who are original plaintiffs, that they filed R.C.S. No.90 of 1999 against the respondents for partition and separate possession. Summons were issued to respondents 1 to 3 and were duly served on respondents 1 and 2. 2. Vide application Exh.26, dated 29th June, 1996 the defendant no.1 contended that the defendant no.3 is residing separately and not in his family. The petitioner herein filed reply to the said application and contended that the defendants no.1 to 3 are from joint Hindu family and reside together and, that the said application has been filed by the defendant no.1 to prolong the proceedings. 3. By order dated 19.12.2002 the learned Court below directed the plaintiff to take steps for personal service of summons to the defendant no. 3. The petitioner filed an application praying for reissue of summons to the defendant no.3 and the learned Court below was pleased to reissue the same vide order dated 30.12.2002. 4. Vide order dated 8th January, 2003, the learned Court below was pleased to dismiss the suit against the defendant no.3 on the ground that the plaintiffs have failed to file the copy of the plaint for reissue of summons. 5. The present petitioners therefore, filed application Exh.50 praying for setting aside the above order of dismissal of the suit as against the defendant no.3 and for issuing fresh summons to him contending that on account of change of Advocate, necessary steps could not be taken. The said application was resisted by the defendants by filing say. Vide order dated 30th December, 2003 the court below was pleased to reject the said application. Hence, this petition. 6. The learned Counsel for the petitioners invited my attention to page 26 of the compilation, which is the Vakalatnama filed by another advocate and submitted that the plaintiffs – petitioners herein had engaged another advocate and the fact that there is dismissal order as against the defendant no.3 was not brought to the knowledge of the plaintiffs by the earlier advocate and only after another advocate was engaged, he brought the order of dismissal of suit against defendant no.3 to the knowledge the plaintiffs. The learned Counsel submitted that merely because the copy of the plaint was not filed by the plaintiffs for reissuing summons to defendant no.3, suit came to be dismissed against Defendant No.3. According to the learned Counsel, substantial rights of the parties should not get defeated by technicalities and, therefore, he prays that the impugned order dated 30th December, 2003 at page 25 deserves to be set aside. 7. Though the respondents are served, none appears for them. No reply is filed by the respondents. In absence of any reply from the respondents, it will have to be presumed that they have nothing to say in reply to this petition. 8. On hearing the learned Counsel for the petitioners – plaintiffs and after perusal of the pleadings in the petition and annexures thereto, I find considerable force in the submission of the learned Counsel for the petitioners. On perusal of the copy of the Vakalatnama, which is made available by the learned Counsel for the petitioners, it is apparent that the earlier advocate was changed by the petitioners and another advocate was engaged. It is to be noted that the earlier advocate did not brought to the notice of the petitioners the order of dismissal of the suit as against defendant no.3 and only after another advocate was engaged, the same was brought to the notice of the petitioners / plaintiffs. Therefore, though there was delay in filing the application, it ought to have been condoned by the learned Judge. The learned Counsel has invited my attention to the averments in the application at Exh.D page 22 of the compilation, in which sufficient grounds have been narrated which would show that the delay in filing application for restoration of the suit against defendant no.3 has been satisfactorily explained. 9. In view of the above, writ petition is allowed in terms of prayer clause (B) and disposed of. [ S.S. SHINDE, J ] ... PLK/@