:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 3412 OF PETITION NO. 3412 OF PETITION NO. 3412 OF 2009 2009 2009 Dharmaji Tayaba Nikam. ... Petitioner. (Orig. Defendant No.1) V/s. Shankar Tayaba Nikam & Ors. ... Respondents. (Orig. Plaintiffs, Respdt. Nos.2 & 3 are Orig.Defts.) Mr. Himanshu Mahajan i/b. Anilkumar Patil for the Petitioner. Mr. Dnyaneshwar Deshmukh for Respondents 1A to 1B. Mr. M.M. Sathaye for Respondent Nos. 2 and 3. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 24TH 24TH 24TH APRIL 2009. APRIL 2009. APRIL 2009. P.C. P.C. P.C. : : : . Regular Civil Appeal of the Petitioner - Original Defendant was dismissed by the Lower Appellate Court on 18th January 2001 on the ground and for the reason that the Appellants failed to deposit paper-book charges. An application for recalling this order was made on 13th January 2006, which application was also dismissed by the order dated 22nd November 2006 and that is how this Writ Petition. 2. A preliminary objection is raised by the Original Plaintiffs - Respondents to this Appeal, that the instant Writ Petition is filed by one of the Appellants and the rest of the Appellants have not come forward to challenge the impugned order. Therefore, order gains finality as :2: far as they are concerned. 3. On the other hand, it is contended by the learned Counsel appearing for the Petitioner that the application for condonation of delay and recalling of the order passed for dismissing the Appeal in default was made by all the Appellants. That Application No.54 of 2006 was proceeded with commonly. Merely because one of the parties to the said application has not challenged the order of the Lower Appellate Court does not mean that they are not entitled to the benefit of this Court’s direction provided this Court is of the opinion that delay should be condoned. 4. Having heard the learned Counsel at some length, I am of the opinion that the Lower Appellate Court should have considered the request of the Appellants to recall the order, dismissing the Appeal in default. The Appellants have shown sufficient cause for not being able to proceed with the Appeal which was pending on the file of the Lower Appellate Court from 2001. In such circumstances and when the illness of the Advocate was substantiated by Medical evidence, the learned Judge should not have taken a Hypertechnical approach and by putting parties to some terms ought to have restored the Appeal to its file. 5. In the larger interest of justice, the impugned orders are quashed and set aside. The Petitioner so also :3: the other Appellants should take steps to pay paper-book charges and have the paper-book prepared within the period of four weeks from today. Failing which, they will loose the benefit of this Court’s order. In that event, the order dismissing the Appeal in default is confirmed and no extension will be granted under any circumstance to comply with this Court’s order. In addition, the Petitioner and the other Appellants to pay costs to the Original Plaintiff quantified at Rs.2,500/-. Costs to be paid within the above period. The Lower Appellate Court, after restoration of the Appeal, shall endeavour and dispose off the same as expeditiously as possible by giving it priority and in any event within a period of six months from its restoration. The Petition is allowed in the above terms. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)