1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 49 OF 2010 IN WRIT PETITION NO. 7388 OF 2004 Bansilal S/o Shivlal Jain .. Appellant Versus Shantilal S/o Bhadu Patil and others .. Respondents Shri Ganesh V. Mohekar, Advocate for the Appellant. Shri N. D. Sonwane, Advocate h/f Shri V. D. Hon, Advocate for the Respondent No. 1, 4A and 5A. The Respondent No. 2 is deleted. Shri K. B. Choudhari, Addl. G.P. for the Respondents No. 3 to 7. CORAM : A. P. DESHPANDE, AND N. D. DESHPANDE, JJ. DATE : 09TH MARCH, 2010. ORAL ORDER [Per A. P. DESHPANDE, J. ] : 01. Admit. Taken up for final hearing by consent of parties. 2 02. Heard. 03. Present appellant is petitioner in writ petition filed before the learned Single Judge of this Court bearing Writ Petition No. 7388/2004. The order impugned in this appeal passed by learned Single Judge is dated 06.05.2009. By the impugned order the learned Single Judge has dismissed an application for restoration of the writ petition, so also an application for condonation of delay in filing the application for restoration. 04. According to the learned counsel for the appellant, the petitioner had engaged an advocate by name Shri Kanade to represent him in the writ petition, however as said advocate has shifted to the Supreme Court, the brief was looked after by his colleague. However, as no lawyer appeared before the Court, writ petition came to be dismissed in default on 17.10.2007. It came to the knowledge of the petitioner that the petition is dismissed in default in November 2007. He engaged another advocate by name Shri Devkatte, who is stated to have applied for certified copies and after obtaining the same filed an application for restoration of the writ petition accompanied by an application for condonation of delay on 09th April, 2008. In the 3 intervening period, the petitioner had engaged advocate Shri G. V. Mohekar in place of advocate Shri Devakatte. 05. It is the case of the appellant that the newly engaged advocate had filed his vakalatnama along with a no objection given by the earlier advocate on 26th August, 2008. The matter thereafter came to be listed on board before the learned Single Judge on 23rd October, 2008. On 23rd October, 2008, the petitioner's advocate by name G. V. Mohekar could not appear as his name was not published in the cause list of the High Court as well as the Bar Association. The earlier advocate had appeared before the Court and informed the Court that he had no instruction. The earlier advocate was not in know of the fact, as to who has been engaged by the petitioner after he had returned the brief and hence the petition came to be dismissed in default again. On coming to know that the petition has been dismissed in default on 24th October, 2008, the advocate who was engaged engaged had filed power on 26th August, 2008, moved an application pointing out to the learned Single Judge that the matter went unattended on 23rd October, 2008, as the name of the advocate was not published in the cause list, despite the fact that he had already filed vakalatnama in the case after obtaining 4 no objection from the earlier advocate learned Single Judge having proceeded to reject the said application, the present letters patent appeal is filed taking an exception to the order passed by the learned Single Judge. 06. The main grievance of the appellant is that though advocate Shri G. V. Mohekar had filed power on 26th August, 2008, his name was not published in the cause list and on account of that omission the advocate could not remain present in the Court, which resulted in dismissal of the petition in default on 23rd October, 2008. This statement of fact in regard to non publication of the name of the advocate in the cause list is not in dispute. If that be so, the appellant cannot be made to suffer on account of absence of the advocate. The reason was beyond the control of the advocate as his name was not displayed in the cause list. 07. We are of the clear view that the litigant ought not to be made to suffer on account of mistake of the office or advocate. We are informed that the subject matter in the writ petition is immovable property and tenancy rights in relation to the same. Having regard to the totality of facts and circumstances, we are 5 of the clear view that the impugned order needs to be set aside in the interest of justice. The cause of justice would advance only if the present appeal is allowed and the writ petition is restored, as otherwise miscarriage of justice would result. Hence letters patent appeal is allowed. The impugned orders dismissing the writ petition are set aside. The application seeking condonation of delay in filing the application for restoration of writ petition is allowed. The writ petitions stands restored. The learned Single Judge to proceed with the writ petition in accordance with law. [ N. D. DESHPANDE, J.] [A. P. DESHPANDE, J.] bsb/Mar.10