1 ao73.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 73 OF 2010 WITH CIVIL APPLICATION NO. 5850 OF 2010 Sarfaraj Khan s/o Raje Khan Kotkar, Since deceased through his legal heirs, Naseemabi Haji Sarfaraj Khan Kotkar, Age: 58 years, Occ: Household., and others. ...APPELLANTS VERSUS JEF PVC Pipes Pvt Limited, (A company registered under the Companies Act, having its head office at Jain Industrial Complex, at Nimkhedi Jalgaon Taluka and District Jalgaon and another. ...RESPONDENTS ... Mrs. C.S. Deshmukh, Advocate for appellants. Mr. K.C. Sant, Advocate for respondent No.1. ... CORAM: S.S. SHINDE, J. DATE : 26TH JULY, 2011 PER COURT : This Appeal from Order is filed 2 ao73.10 challenging the judgment and order dated 02-01-2010 passed by the District Judge-1 Jalgaon in Misc. Civil Application No. 133 of 2006. A few facts of the case are as under : 2. Respondent No.1 herein filed Special Civil Suit No.204 of 1989 against the appellants and respondent No.2 for recovery of Rs.48,050/-. Said amount claimed was allegedly in respect of recovery of damages for short delivery of goods. According to respondent No.1, 500 bags were loaded in truck owned by deceased appellant No.1 and driven by appellant No.2. Only 436 bags were alleged to be reached to respondent No.1. 3. The appellants herein filed written statement and contended that, only 436 bags were loaded in the truck and it was sealed and the seal was broken at the time of unloading by respondent No.1. However, false endorsement was made by Manager of respondent No.1. 3 ao73.10 4. After recording the evidence and after hearing the parties, on 02-02-1994 2nd Joint Civil Judge, Senior Division, Jalgaon partly decreed the suit and directed the appellants herein and respondent No.2 to pay Rs.45,000/- to respondent No.1 with interest. The appellants herein being aggrieved by the said judgment and decree, preferred Regular Civil Appeal No. 87 of 1994. According to learned Counsel for the respondent No.1, said appeal was dismissed for non prosecution in the year 2001 and subsequently, in the year 2006. The appellants herein filed Misc. Civil Appeal No.133 of 2006 for restoration of the said appeal. However, by the impugned order, the said application came to be dismissed with costs. Hence this Appeal from Order. 5. Learned Counsel for the appellants submits that initially Advocate Mr. Pingale was appeared on behalf of the appellants. However, in 2004 the appellants engaged Advocate Mr. Sarode to 4 ao73.10 look after the appeal. Thereafter, the appeal was listed for hearing on 12-06-2006, 28-06-2006, 10-07-2006, 26-07-2006, 08-08-2006 and on 25-08-2006. It is the contention of the appellants that, on all these dates, the appeal appeared on the daily board showing appearance of Advocate MR. Pingale on behalf of the appellants. Subsequently, typed name of Advocate Mr. Pingale was scratched and Advocate Mr. Sarode's name was written by hand. It is further submitted that, on 30-08-2006 when the appeal was listed for hearing, same mistake was repeated and Advocate Mr. Sarode's name was not typed on daily board. The appellants and their Advocate, therefore, did not appear and the appeal was dismissed in default. According to learned Counsel for the appellants, for the mistake of Advocate, the appellants should not suffer. Learned Counsel for the appellants placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rafiq and another vs. Munshilal and another, reported in A.I.R. 1981 S.C. 1400. Therefore, according to learned Counsel 5 ao73.10 for the appellants, Misc. Civil Application NO. 133 of 2006 ought to have been allowed. 6. On the other hand, learned Counsel appearing for respondent No.1 invited my attention to the findings given by the District Judge-2 Jalgaon and submitted that, since the suit is partly decreed in the year 1994 and respondent No.1 is deprived from getting the fruits of the said decree, this Court may not interfere with the impugned order. 7. Learned Counsel for respondent No.1 invited my attention to Para-9 of the impugned judgment and submitted that, Advocate Mr. Sarode's name was very much appeared on the daily board. Therefore, it cannot be said that his appearance was not there and as a result, the appeal came to be dismissed. In fact, the appellant is not interested in prosecuting the appeal. If the Advocate has entered appearance for the parties, he is bound to keep the track of the said matter. 6 ao73.10 Therefore, learned Counsel submits that, this Court may not interfere with the impugned judgment and order. 8. I have given due consideration to the submissions of the learned Counsel for the parties. At the outset, it would be relevant to reproduce Para-9 from the impugned judgment which reads thus : "9. As per submissions of learned Advocate for petitioners, the only reason, which is stated for showing sufficient cause, which prevented appearance of learned Advocate for petitioners or petitioners themselves is, that name of Shri. V.V. Sarode, Advocate, has not been typed though it was handwritten on some daily boards. In my opinion, the reason stated by petitioner to accept as a bona fide and sound reason, is not a reason at all, because, after perusal of daily boards of dates mentioned above, it 7 ao73.10 appears that name of Shri. V.V. Sarode, Advocate, has been written even by hands on the dates 12/06/2006, 10/07/2006, 26/07/2006. Mentioning of an Advocate either by typing or by handwriting reveals that name of Shri. V.V. Sarode as well as Shri. S.P. Pingale has been written on the daily boards of above dates, but it appears that no cognizance has been taken by learned Advocate of his name handwritten on the above daily boards. Therefore, in my view, the reason stated by petitioners of not typing name of Shri. V.V. Sarode on daily boards is not bona fide and sufficient reason, which prevented the learned Advocate or petitioners from appearing on the dates of hearing of appeal." 9. Upon perusal of the findings given by the appellate Court, it is crystal clear that on certain dates i.e. 12-06-2006, 10-07-2006, and 26-07-2006 name of Advocate Mr. Sarode as well as Advocate Mr. S.P. Pingale was written on daily boards. The Advocate appearing for the appellants 8 ao73.10 is expected to keep track of the matter in which he is appearing. The appeal was listed on number of dates and it is impossible to believe that Advocate of the appellants was not aware about the hearing of the appeal. It is true that, in normal course, liberal approach should be adopted by the Court while entertaining the application for restoration of appeal. However, in the present case, money decree is passed in favour of respondent No.1 as back as on 02-02-1994. The appellants were directed to pay Rs.45,000/- with interest to respondent No.1. For long 17 years, respondent No. 1 is deprived from getting the fruits of the decree. Since money decree was under challenge in appeal, the appellants and Advocate of the appellants were suppose to be vigilant in prosecuting the appeal. It is not the case that the appeal was listed for hearing only on one or two dates. It was listed on number of dates. However, it appears that the appellants, to avoid the money decree and since obtained stay orders, were not interested to prosecute the appeal. 9 ao73.10 10. When this Appeal from Order was called for hearing on earlier occasion, learned Counsel for the appellants was asked to take instructions from the appellants as to whether they are ready to deposit the decretal amount with interest in this Court. However, reply of the appellants is in the negative. Therefore, no leniency can be shown to such appellants, who on their own made default in prosecuting the appeal on number of dates fixed for hearing and deprived respondent No.1 from enjoying benefits of money decree passed prior to 17 years. 11. In my opinion, in the facts and circumstances of this case, no case for leniency can be shown to the appellants. It would have been possible to entertain this Appeal from Order, if the appellants should have deposited the decretal amount with interest. However, the appellants have refused to do so. 10 ao73.10 12. In that view of the matter, in my opinion, the impugned judgment and order dated 02-01-2010 passed by the District Judge-1 Jalgaon in Misc. Civil Application No. 133 of 2006 calls no interference. Appeal from Order is devoid of any merits and stands dismissed. Consequently, Civil Application stands rejected. [S.S. SHINDE, J.] sut/JUL11