1 WP2727/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2727 OF 2011 Balaji alias Chandrakant s/o Babasaheb Choudhari, Age 59 years, Occ. Agriculture, Resident of Jindipuza Galli Gangakhed, Taluka Gangakhed, District Parbhani Petitioner V E R S U S 1 Babasaheb s/o Mukundrao Choudari, Age 69 years, Occ. Agriculture, Khandapuza Galli, Gangakhed, Taluka Gangakhed, District Parbhani Respondents 2 Srikant s/o Babasaheb Choudhari, Age 38 years, Occuation Agriculture, R/of as above Mr. Arvind Deshmukh, Advocate for the petitioner Respondents though served, but absent CORAM : A.V. NIRGUDE, J. DATED : 15th July, 2011 ORAL JUDGMENT : 1. Heard learned counsel for the petitioner. Despite service of notice on respondents, they are absent. 2. This writ petition is filed against the order dated 10th December, 2010, passed by the learned District Judge – 1, Gangakhed, on Exh.17/03, in Miscellaneous Application (Requiring Judicial Inquiry)(RJE) No. 11 of 2010. The miscellaneous application was an application filed under Section 5 of the Limitation Act. The applicant was the plaintiff in Regular Civil Suit No. 222 of 2003, in which he had made an application seeking temporary injunction against respondent / defendant. His application was rejected on 18th November, 2004. He preferred Misc. Civil Appeal No. 45 of 2004, but the same was also dismissed for default on 17th November, 2007. It is the case of the petitioner that he did not know that his Misc. Civil Appeal No. 45 2 WP2727/11 of 2004 was dismissed on 17th November, 2007 for quite some time and when he learnt about it, he filed application for restoration of the dismissed appeal with the present miscellaneous application seeking condonation of delay. 3. Admittedly, the application for restoration of the appeal was delayed by about 2 years and 6 months. The learned Judge while dismissing this application held that the petitioner did not give cogent evidence to explain the delay. On perusal of the application, on which the impugned order was passed, it is found that the application is not happily worded. It simply says that the petitioner became aware of dismissal of his appeal rather belatedly. He did not mention as to why his Advocate remained absent on the day when the appeal was dismissed for default. He did not blame his Advocate for this event. 4. However, I am still inclined to condone the delay by setting aside the impugned order. The petitioner after filing of Misc. Civil Appeal No. 45 of 2004 would depend on his Advocate to attend the case. In such a case, the petitioner/appellant’s personal attendance before the Court was not at all required. He would therefore remain absent on the dates of the appeal and would attend the case only if his Advocate asked him to do so. So, It seems if the appeal was dismissed for default, it ought to have been dismissed because the petitioner’s Advocate did not remain present when it was called out. It further appears that even the learned Advocate did not come to know about dismissal of the appeal for quite sometime. It seems, rather belatedly, the petitioner learnt about it and then he hurriedly filed Misc. Application (RJE). The reason why these various facts are not mentioned in the application is probably because the very Advocate was engaged to file this application and he would not blame himself for dismissal of the appeal. This 3 WP2727/11 appears to be a case where a party is made to suffer because of lapse on the part of his Advocate. In view of this, this writ petition deserves to be allowed and the impugned order deserves to be set aside. The application seeking condonation of delay deserves to be allowed. ORDER 1. The writ petition is allowed. 2. The impugned order passed by District Judge – 1, Gangakhed, dated 10th December, 2010, in M.A. (RJI) No. 11 of 2010 on Exh. No. 17/03 stands set aside. 3. The delay caused in filing of the application seeking restoration of the Misc. Civil Appeal No. 45 of 2004 is condoned. 4. The learned District Judge – 1, Gangakhed shall now consider the application on merits. ( A.V. NIRGUDE, J. ) SRM/wp/2727/11/15/7/11ok