( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 118 OF 2008 Latadevi d/o. Nago Ahire .. Appellant @ Latadevi w/o. Adhar Wagh Versus Latadevi w/o. Adhar Wagh .. Respondents @ Sunderbai d/o. Pandurang Borse and ors. Shri P.R. Patil, Advocate for the appellant. Shri C.R. Deshpande, Advocate for respondent Nos. 1 to 5. Shri D.V. Tele, A.G.P. for respondent No.6. CORAM : P.R. BORKAR,J. DATED : 11.08.2009 P.C. :- 1. This is an Appeal from Order preferred by the original applicant whose Misc. Application No. 6 of 2005 for restoration of Misc. Application for condonation of delay in filing First Appeal has been rejected by the learned Adhoc District Judge-2, Dhule on 05.10.2007. 2. Briefly stated facts giving rise to this appeal ( 2 ) from order may be stated as below :- 3. The present appellant Latabai married respondent No.5 Adhar Wagh on 16.04.1986 at Chalisgaon. Thereafter, respondent No.5 Adhar married respondent No.1 also named as Latadevi in 1993. Thereafter, present appellant filed application for maintenance under Section 125 of the Cr.P.C. and the Judicial Magistrate, First Class, Chalisgaon was pleased to award Rs.500/- per month towards maintenance. Respondent No.5 Adhar is practicing advocate at Dhule. Thereafter, respondent No.1 Latabai filed Civil Suit in the Court of Civil Judge, Junior Divison, Dhule for declaration that she is legally wedded wife of respondent No.5 Adhar. In the said suit filed at Civil Court, Dhule, respondent No.1 Latadevi made respondent No.5 - Adhar, appellant Lata and Social Welfare Officer as parties. The appellant was resident of Chalisgaon. It is say of the present appellant that Civil Judge, Junior Division, Dhule had no authority to entertain the suit when Social Welfare Officer was party in view of Section 32 of the Bombay Civil Courts Act. It is also say of the appellant that no summons was served on her through Bailiff, but summons was only sent by R.P.A.D. and it ( 3 ) was received back by the Court as "not claimed". The suit was decreed ex-parte. As against the same, the present appellant filed appeal in the District Court, Dhule, along with application for condonation of delay of 9 days. Said Misc. Application was bearing No. 38 of 1995. It is case of the appellant that same came to be dismissed for non-appearance on 26.03.1999. For restoration of said application, appellant filed Misc. Civil Application No. 6 of 2005 and there is delay of 5 years 10 months for filing that application. The learned Adhoc District Judge-2, was not satisfied with the reasons given and he dismissed the said application on 05.10.2007 and it is this order which is challenged in this appeal from order. 4. Heard Adv. Shri P.R. Patil for the appellant and Adv. Shri C.R. Deshpande for respondent Nos. 1 to 5. Adv. Shri Deshpande argued that the appeal from order is not tenable against dismissal of Misc. Civil Application No. 6 of 2005 by the Adhoc District Judge-2, Dhule. He also argued that the appellant was well aware of the decision of dismissal of Misc. Civil Application No. 38 of 1995 on 26.03.1999 and inspite of that she did not file application ( 4 ) for setting aside said dismissal and for restoration in time and the reasons given are false. It is also argued that the several proceedings were simultaneously initiated just to harass respondent No.5 and therefore the appeal be dismissed. 5. The learned advocate Shri P.R. Patil stated that Latadevi Ahire is not literate lady and she should not suffer for the fault of the advocate. She was not aware of dismissal and as soon as she came to know of dismissal, she made the application. It is also argued that simultaneously proceedings were filed under Order 9 Rule 13 of the C.P.C. and also appeal in view of advice given by the advocates and for the same she is not liable. 6. So far as maintenability of appeal from order is concerned, the learned advocate Shri C.R. Deshpande relied upon case of Shyam Sundar Sarma V/s. Pannalal Jaiswal & Ors., 2005(4)Bom.C.R.839. He drew my attention to para 9 and 10. It is laid down in said paragraphs that appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. So far as dismissing the appeal is a decree and that could be subject of the Second ( 5 ) Appeal. On careful consideration of paras 9, 9.1, 9.2 and 10, it is clear that their Lordships have considered a case of dismissal of the appeal on the ground that it was time barred. The learned advocate Shri P.R. Patil drew my attention to para 8 of the said judgment in which it is said that whether the appeal accompanied by application for condoning the delay in filing the appeal is an appeal in the eye of the law, when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time barred by limitation, in view of Section 3 of the Limitation Act. There was conflict of views on the question and the Privy Council held that there is no definition of appeal in the Civil Procedure Code, but any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal. After giving careful thought to the judgment cited and the distinction sought to be made by Adv. Shri P.R. Patil, in my considered opinion, when application for condonation of delay in filing appeal is dismissed on merit, it would be dismissal of the appeal. In the present case, the application for condonation of delay was not dismissed on merit but it was dismissed for default and therefore in my ( 6 ) opinion Order 41 Rule 19 of Code of Civil Procedure would be applicable so far as application for restoration of said Misc. Application is concerned. Order 41 Rule 19 is as follows :- “19. Re-admission of appeal dismissed for default – Where an appeal is dismissed under Rule 11, sub- rule (2) or rule 17, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.” 7. As per order 43 Rule 1 (t) of C.P. Code said order of refusal under Rule 19 of Order 41 to readmit can be subject of an appeal from order. In this view of the matter the appeal from order is tenable in the facts of the present case where earlier application for condonation of delay was not dismissed on merit, but was dismissed in default. 8. So far as merit is concerned, both the advocate for ( 7 ) the parties have taken me through the entire record. Adv. Shri C.R. Deshpande pointed out to me that there were two occasions on which it was brought to the notice of the present appellant regarding dismissal of Misc. Civil Application No. 38 of 1995 by the Adhoc Additional District Judge-2, Dhule on 26.03.1999. The first occasion according to him is filing of application Exh.51 in Special Civil Suit No. 382 of 1996 by the defendant on 01.11.1999. Copy of the same is produced before me in he compilation given by the advocate for the respondents and at page 7 there is reply given to the application Exh.51 and 53. Copy of Exh.51 is also on record. In para 4 it is mentioned that application for condonation of delay bearing Misc. Civil Application No. 38 of 1995 was decided on 26.03.1999. Reply to said Exh.51 is signed by the advocate for the appellant. It is not known whether the advocate has read out and explained entire application Exh.51 to the appellant including the fact that her Misc. Application had been dismissed. The application Exh.51 is for amendment to the written statement. Second occasion on which attention specifically drawn is said to be ground No. VII of Criminal Writ Petition No. 488 of 2001 filed by the present respondent No.5 on 25.10.2001. Copy of ( 8 ) writ petition is also produced on record. The document is in English and I wonder whether respondent ever read it or there was any occasion for the advocate for the appellant to explain her the grounds mentioned in the writ petition. In my considered opinion, considering the nature of dispute, particularly since marital status of the present appellant is being challenged in this suit, she is entitled to fair opportunity. According to her suit summons was not served on her. This is something which has to be considered while deciding Misc. Application No. 38 of 1995. 9. The learned advocate Shri P.R. Patil also stated that the suit should not have been filed directly in the Court of Civil Judge, Junior Division at Dhule when there is only Court of Jt. Civil Judge, Junior Divison at Dhule and the Principal Judge is Civil Judge, Senior Division, Dhule. Secondly in view of Section 32 of the Bombay Civil Courts Act considering that the Social Welfare Officer is made party in official capacity, the Court of Civil Judge, Junior Division has no jurisdiction to entertain the suit. 10. The learned advocate for the appellant has cited ( 9 ) several authorities and placed them on record with a list. He relied upon case of N. Balakrishnan V/s. M. Krishnamurthy, AIR 1998 S.C.3202 for proposition that the delay caused due to failure of advocate to inform the appellant as well as his failure to take action can be said to be satisfactory cause to restore the appeal. Adv. Shri P.R. Patil argued that it was duty of the of the advocate engaged to attend Misc. Application No. 38 of 2005 and it is because of his negligence the application came to be dismissed. My attention was drawn to para 5 and 7 of the case of Annasaheb Virupaksha Bidre V/s. Dada Tatoba Patil and Ors., 2005 (2) Mh.L.J.221, in which it is said that client was not required to attend any appeal when services of the advocate were already engaged and it was responsibility of the advocate to remain present on the date fixed for hearing of the appeal and the appellant and litigant cannot be blamed if he was not present. Having regard to the submissions, the appeal from order can be allowed on certain costs. 11. In the result this Appeal From Order is allowed. The order passed by the Adhoc District Judge - 2 Dhule, in Misc. Application No. 6 of 2005 dated 05.10.2007 is hereby ( 10 ) set aside. The District Court, Dhule is directed to restore Misc. Civil Application No. 38 of 1995 on the file. The learned advocates for both sides are ready to appear before District Court on 18.09.2009 at 11.00 a.m. The District Court shall proceed with the hearing of the said Misc. Civil Application No. 38 of 1995 as expeditiously as possible and decide it preferably within three months. The appellants shall pay costs of Rs. 2000/- as costs of this appeal from order to the respondents. [P.R. BORKAR,J.] snk/2009/AUG09/ao118.08