1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4473 OF 2008 Indian Bank & anr. ..Petitioners. V/s. Mr.Thomas Anthony Gomes & Ors. ..Respondents. Mr.Mukul Taly i/b. M/s. Mabel & Associates for petitioners. Mr.S.D.Patil for Respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JULY 23, 2008. DATE : JULY 23, 2008. DATE : JULY 23, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Patil waives notice for all the Respondents. 4. As short question is involved, Petition is taken up for hearing forthwith by consent. 5. This Petition takes exception to the Judgment and Order passed by the Court below dated 23rd 2 January, 2008, below Exh. 1 in Civil Misc. Application No.210 of 2007, whereby the Petitioners prayed for setting aside the Order dated 24th July, 2007 passed on Exh.11 and Exh.13 in Misc. Civil Appeal No.67 of 2007. The said Application is filed by the Petitioners under provisions of Order 9 Rule 13 read with section 151 of CPC. The principal stand taken by the Petitioners was that on 24th July, 2007, the panel advocate, who was assigned the matter to appear before the lower Court, failed to appear for the reasons noted in the affidavit filed before the lower Court. One of the reason stated is that during the relevant period the advocate had gone out of station to Karnataka. The other contention canvassed across the bar as noted in paragraph-12 of the impugned Judgment is that the husband of the concerned advocate had expired and the advocate was under depression on account of which did not appear on 24th July, 2007. The plea that the advocate had gone to Karnataka has not been negatived by the Court below. At the same time, the plea that the husband of the advocate had expired recently is also not contested. It necessarily follows that the matter went by default on account of mistake of advocate. It is well established position that the litigant should not suffer for the mistake of the advocate. 3 Applying that principle, the Court below ought to have shown indulgence to the Applicant, especially having regard to the fact that the consequence of the Order dated 24th July, 2007 was to enable the Respondents to withdraw the amount deposited in the Court in a suit, which is simplicitor for injunction filed by the Respondents. In my opinion, therefore, the analysis done by the Court below though appropriate, the Petitioners ought to succeed on the principle that the litigant should not suffer for the mistake of the advocate. The Petitioners would be however, entitled for this indulgence on payment of costs to the Respondents, which is quantified at Rs.5,000/-. Payment of costs is pre-condition for setting aside the Order dated 24th July, 2007 and restoring the Applications Exh.11 and Exh. 13 to the file to its original number to be decided on its own merits in accordance with the law. 6. The argument of the Respondents that such application cannot be proceeded under provisions of Order 9 Rule 13 clearly overlooks that the Application is also one under Section 151 of the Code. Thus understood, the Court had ample power to set aside its Order dated 24th July, 2007, for the reasons already indicated in the earlier part of this 4 order, in exercise of powers under section 151 of the Code. 8. Accordingly, this Petition succeeds. The impugned Judgment and Order is set aside. Instead, the Applications Exh.11 and Exh.13 are restored to the file of the lower court to its original number to be decided on its own merits in accordance with the law. All questions in the said applications are left open, to be decided uninfluenced by the observations in Order dated 24th July, 2007 or for that matter any other order including present order. The Petitioner shall pay cost quantified at Rs.5000/- to the Respondents within two weeks from today, which is the condition precedent for showing this indulgence. 9. Petition succeeds on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)