kbp 1 1590-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1590 OF 2008 Krishna Govind Jagdale and anr. ..Petitioners Vs. Dashrath Hindurao Kadam and ors. ..Respondents ....... Mr.L.S.Gaikwad, for petitioners. Mr.K.V.Saste, for respondent no.1. Mr.Vijay Gharat, for respondent nos.3(A) to 3(E). ....... CORAM : A.S.OKA, J.. DATE : 1 st OCTOBER, 2009. P.C. : 1] Submissions of the learned counsel for the parties were heard on earlier date. 2] The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 24 th July, 2007 passed by the learned District Judge, Satara, by which an application for condonation of delay has been dismissed. The petitioners are the defendants in the suit filed by the first respondent. The suit was decreed. An appeal was preferred by the petitioners, which was admitted. It appears that the paper book charges were not deposited in the appeal. Therefore, on 16 th July, 2003 the District Court dismissed the appeal for non prosecution. An application of restoration was made alongwith an application for condonation of delay. The delay was of two years and three kbp 2 1590-08.sxw months. 3] The learned counsel for the petitioners invited my attention to the averments made in the application for condonation of delay. He submitted that the appeal was dismissed as paper book charges were not deposited by the advocate. It is submitted that the petitioners were under an impression that the advocate appointed by them to prosecute the appeal was looking after the appeal. He, therefore, submitted that delay ought to have been condoned. Learned counsel for the first respondent opposed the petition by pointing out that there is absolutely no explanation for long delay. He submitted that the petitioners cannot conveniently shift the entire blame on their advocate. It is submitted that the petitioners were not diligent. 4] I have carefully considered the submissions. It is not in dispute that the appeal preferred by the petitioners was admitted and it was dismissed for non prosecution on account of non payment of paper book charges. The petitioners had engaged an advocate to prosecute the appeal. Once the advocate was engaged by the petitioners it was not necessary for the petitioners to attend the District Court on the dates fixed in the appeal. The appeal was dismissed for non prosecution as the paper book charges were not paid. A specific assertion has been made by the petitioners in the application for condonation of delay that when they used to contact their advocate at Phaltan, they were informed not to worry as the said advocate was looking after the appeal. It is stated that the kbp 3 1590-08.sxw petitioners learnt about the dismissal of the appeal only after they received a notice of execution. The decree passed against the petitioners was for partition and separate possession. Considering the ground on which the appeal was dismissed for non prosecution and considering the averments made in the application, the appellate court ought to have taken a liberal view of the matter and condoned the delay. The petitioner cannot be blamed if their advocate failed to deposit the paper book charges and process fees. The loss or prejudice which may be caused to the respondent no.1 could have been compensated by ordering payment of costs. Considering the facts of the case, the amount of costs is quantified at Rs.7,500/-. Hence, I pass the following order. (a) The impugned order dated 24 th July, 2007 is quashed and set aside and Misc. Civil Application No.236 of 2005 is allowed, subject to payment of costs of Rs.7,500/- by the petitioners to the first respondent within a period of eight weeks from today. Payment of costs will be a condition precedent. (b) Deposit of costs amount with the appellate court within the stipulated period shall be treated as the sufficient compliance. (c) Writ petition is allowed in the above terms. ( A.S.OKA, J. )