IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 585 OF 2008 Shri Suryakant Bhaskar Gorule & Anr. ..... Petitioners. Versus Gafar Ibrahim Nadar & Ors. ..... Respondents. Mr. Rahul P. Walvekar, for the Applicants. Mr. Sandesh Patil, for Respondent Nos.1 and 2. None for Respondent No.3. CORAM: R. V. MORE, J. DATED : 18TH JUNE, 2009 P.C.: 1. The present Revision Application takes exception to the Order dated 18th June, 2008 passed by the 4th Joint Civil Judge, Junior Division, Kolhapur in Misc.Civil Application No.149 of 2007 whereby the Petitioners’ application for condonation of delay of one year and three months approximately occurred for restoration of Regular Civil Suit No. 406 of 2001 came to be rejected . 2. The Petitioners’ filed Regular Civil Suit No.406 of 2001 for injunction simplicitor and for removal of the unauthorized construction by the Respondents. Th said suit was dismissed for default on 8th March 2006 as nobody appeared on behalf of Petitioners on that day. The ..: 2 :.. Petitioners thereafter filed Misc. Application for restoration of the said Suit. The present applications was filed for condonation of aforesaid delay in filing of application for restoration. 3. It is specific case of the Petitioners that the Petitioner no.1 was looking after the litigation. However, since February, 2006 he was down initially with fever and subsequently by jaundice. The Petitioners in order to substantiate their contention, examined the PW-1 Dr.Ravindra Ghorpade. From the evidence of Petitioner no.1 and PW-1 Dr.Ghorpade the Trial Court found that the dispensary of Dr.Ghorpade is 5 to 6kms. Away from Petitioner no.1’s house and thereafter held that the Petitioner was attending dispensary of Dr.Ghorpade, in that case he could have also instructed his lawyer. The Trial Court disbelieved the medical certificate issued by PW No.1 Dr.Ghorpade and held that sufficient cause was not shown for condonation of delay. Consequently application for condonation of delay came to be rejected. 4. It was specific case of the petitioners that in the month of May 2007 they got information that their suit came to be dismissed for default and thereafter, on 17th May 2007 they applied for certified copy of the order dated 8th March 2006 dismissing their Suit, which was received by them on 19th May 2007 and thereafter present Application came to be filed on 18th June 2007. ..: 3 :.. 5. The Petitioners in this Revision submitted that their lawyer gave his process at Exh.’B’ on 3rd March 2006 for withdrawal of his Vakalatnama and thereafter the Suit placed on 8th March 2006 for orders. On this date their Lawyer remain absent and therefore suit was dismissed for default. Petitioners submitted that before withdrawal of Vakalatnama their lawyer did not give prior notice and therefor Petitioner could not remain present on 8th March 2006. The Petitioners in order to substantiate their submission annexed the said pursis at Exh.’B’. The said pursis discloses that the Petitioners’ lawyer withdrew his Vakalatnama from the Suit for want of instructions. The statement of the Petitioners that said withdrawal of Vakalatnama by their lawyer without prior intimation to the Petitioners is not denied or controverted by the respondents by filing affidavit-in-reply to this Revision. 6. Since the Petitioners were not aware about withdrawal of Vakalatnama by their lawyer, Petitioners could not remain present on 8th March 2006 when Suit was called out for orders. In above facts, Petitioner’s contention that they for the first time came to know the order dated 8th March 2006 in May 2007 deserves to be accepted. In my view, the Petitioners’ lawyer could have been allowed to withdraw his Vakalatnama unless and until prior intimation thereof was given to the Petitioners. The Petitioners after receipt of information of dismissal of ..: 4 :.. their Suit, immediately applied for certified copy of order and thereafter within a month have filed an application for restoration of their Suit. If the facts and totality of circumstances are taken into consideration, I find the Petitioners have given sufficient cause for condonation of delay occurred in filing Misc. Civil Application for restoration of the said Suit. The impugned Order is accordingly set aside. The Petitioners’ Misc. Civil Application no.149 of 2007 is allowed. The Civil Revision Application is disposed of accordingly. JUDGE