1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.3794 OF 2008 Smt.Sampada @ Indubai Ganpati Chavan & Anr. .. Petitioners Versus Sau.Vidya Bhagwan Jadhav & Anr. .. Respondents Mr.Vijay Killedar for the petitioners. Mr.M.R.Katikar for respondents. CORAM : A.S.OKA, J. DATE : 4th August 2009. P.C.: . Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondent nos.1 and 2. Notice for final disposal at admission stage has been issued by this Court. 2. The 1st respondent is the original plaintiff. The 1st respondent filed a suit for partition which was decreed on 03rd August 2005. on 19th September 2005, within the stipulated period of limitation, the petitioners preferred an appeal for challenging the decree passed in the suit. On 23rd September 2005 an order was passed by the 2 District Court directing the petitioners to comply with the office objections. It appears that by order dated 29th October 2005 the appeal was disposed of without registration on the ground that the petitioners or their advocates have not complied with the objections raised in the appeal. The objection raised in the appeal seems to be regarding failure to pay proper Court fees. An application for restoration was made on 15th April 2006 alongwith application for condonation of delay. By the impugned order, the said application has been rejected by the District Court. 3. The learned counsel appearing for the petitioners submitted that the District Court has taken a very hyper-technical view of the matter. He submitted that the appeal was not dismissed on merits but on the ground of non removal of office objections. He submitted that after the filing of the appeal, the husband of the 1st petitioner expired on 09th November 2005. He pointed out that the husband of the 1st petitioner who was the 1st appellant was unwell from September 2005. The 3 learned counsel appearing for the respondent supported the impugned judgment and order by pointing out that assuming that the 1st appellant was unwell, the 2nd appellant (2nd petitioner) could have taken appropriate steps by paying necessary deficit court fees. He submitted that there is absolutely no explanation for delay of more than six months and therefore the District Court was justified in rejecting the application. 4. I have carefully considered the submissions. It must be noted here that substantive appeal against the decree preferred by the petitioners has been dismissed for non removal of office objections. While dismissing the appeal for non prosecution, the District Court has noted that the petitioners or their advocate have not complied with the objections. The petitioners had engaged an advocate for prosecuting the appeal. It appears that the advocate did not take steps for removal of office objections. The District Court, in my view, has taken a very hyper- technical view of the matter. The petitioners have engaged services of an advocate. The 4 petitioners cannot be blamed if the appeal was dismissed on account of failure to remove the office objections unless it is shown that the default was on their part and not on the part of their advocate. The delay in filing application for restoration ought to have been condoned by ordering payment of costs to the 1st respondent. 4. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order is quashed and set aside. (b) Civil Misc. Application No.17 of 2006 is allowed subject to petitioners paying costs of Rs.5,000/- to the 1st respondent. The amount to be paid to the 1st respondent within eight weeks from today. Payment of costs will be condition precedent. (c) Deposit of amount of the costs with the District Court within a period of eight weeks from today will be treated as sufficient compliance. (A.S.OKA,J)