1 (WP106/2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 106 OF 2011 Bismati Rajesh Yadav ... Petitioner V/s Chapsibhai Khimji Gogri ... Respondent. Mr. M.P. Vashi, Senior Counsel i/b M/s M.P. Vashi & Associates for the Petitioner. Mr. R.S. Yadav for Respondent. CORAM: V. M. KANADE, J. DATE : 25th April, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondent. 2. Petitioner is the original tenant. A suit was filed by the Respondent – landlord for eviction on the ground of arrears of rent. An ex parte order was passed in March, 2007 by the Trial Court. Application was made for setting aside the ex parte decree by the Petitioner herein on 19/10/2007 after he received notice under Order XXI Rule 22. The said 2 (WP106/2011) application was rejected. Appeal preferred against the said order was also dismissed. Being aggrieved by the said order, Petitioner has preferred this Writ Petition under Article 227 of the Constitution of India. 3. Mr. Vashi, the learned Senior Counsel appearing on behalf of the Petitioner submitted that the suit summons was served on the minor son of the Petitioner. It is submitted that the Petitioner engaged an advocate one Mr. A.R. Pandey. It is submitted that he promised that he would file the Written Statement. However, Written Statement was not filed and an ex parte decree was passed in March, 2007. It is submitted that the Petitioner, being an illiterate person, relied on the assurance given by his advocate and was under the impression that his advocate is pursuing the case. It is submitted that for the fault of the advocate, the Petitioner should not be made to suffer and, therefore, subject to certain conditions, the ex parte order may be set aside. Reliance was placed on the judgment of the Apex Court in Rafiq and another vs. Munshilal and another.1 4. The submission made by the learned Senior Counsel for the Petitioner cannot be accepted. It is an admitted position that the Petitioner appointed his advocate who filed his appearance. However, there is no material on record to show that thereafter the Petitioner was diligently pursuing the suit and only after execution warrant was issued, he filed 1 AIR 1981 SC 1400 3 (WP106/2011) an application for setting aside the ex parte decree. The judgment in Rafiq and another1 (supra) on which reliance is placed by the learned Senior Counsel appearing on behalf of the Petitioner, in my view, would not apply to a case where there is no material to show that the Petitioner has acted diligently in pursuing the suit. In the absence of such material, it cannot be presumed that the advocate alone is responsible. In the present case, the suit was filed in the Small Causes Court at Mumbai. Petitioner is also permanently residing in Mumbai. There is no material to indicate that he had contacted his advocate or had attempted to contact him. In this view of the matter, ratio of the said judgment will not apply to the facts of this case. Hence, it is not possible to interfere with the concurrent finding of fact recorded by the lower courts. Writ Petition is dismissed. 5. At this stage, the learned Senior Counsel appearing on behalf of the Petitioner submits that some time may be given to the Petitioner to enable him to approach the higher court. Decree, therefore, not to be executed till 5th July, 2011. 6. Writ Petition is accordingly disposed of. (V.M. KANADE, J.) 1 AIR 1981 SC 1400 4 (WP106/2011)