1 caf2608-2819 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.2608 OF 2005 AND CIVIL APPLICATION NO.2819 OF 2005 IN FIRST APPEAL NO.148 OF 1997 Durriya D. Baliwala ...Applicant (in both applications) vs. Noorbanu A. Baliwala & Ors. ...Respondents (in both applications) Mr.Ajit Karwande for the Applicant Mr.M.P.Rao,Sr.Counsel with Mr.Chirag Balsara, Mr. Parag Khandhar i/b M/s.Mulla & Mulla & C.B.C.for the respondent CORAM : A.S.OKA,J. DATE : AUGUST 20, 2011 P.C.: 1 Heard the submissions of the learned counsel for the applicant and the learned senior counsel for the respondents. The applicant in this application is the original plaintiff-respondent and the respondents are the defendants-original Appellants. First Appeal has been filed by the original defendants for challenging the Judgment and Decree dated 9 th April 1996 passed by the Trial Court in the suit filed by the applicant. The said suit was partly decreed. The operative part of the decree reads thus : (a)The defendants are restrained from obstructing the entry and exit of the plaintiff in the suit premises between 5 a.m and 2 a.m of each day for her peaceful 2 caf2608-2819 user of the room which her husband was using before his demise till clause (c) is complied with. (b) The defendants are restrained from removing the moveables which are recorded to be that of the Plaintiff in the injunction order till the injunction in clause (a) is operative. 2 The appeal was taken up for final disposal on 28 th February 2005. The appeal was allowed by this Court by setting aside the decree of the trial Court and the suit filed by the applicant was dismissed. 3 Civil application no.2608 of 2005 has been taken out by the applicant for setting aside the Judgment in the Appeal and for restoration of the Appeal. Civil application no.2819 of 2005 has been filed by the applicant for condonation of delay of 75 days in preferring civil application no.2608 of 2005. As stated earlier, the appeal was allowed by order dated 28 th June 2005 and civil application no.2608 of 2005 has been filed on 17 th June 2005. This application has been filed by the applicant by invoking Rule 21 of Order XLI of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). The contention raised in the application is that the appeal appeared at serial no.221 of final hearing board of this Court and the appearance of the Advocate for the applicant was not shown on the cause list. It is, therefore, contended that the applicant was not aware that the appeal was placed 3 caf2608-2819 on board for final hearing. It is contended that the applicant-plaintiff is the widow of son of first defendant who was the appellant no.1. A copy of cyclostyled cause list of this Court has been annexed to the application. The original appellant no.2 filed a reply. It was pointed out that though notice of filing of the Cross appeal was served through Shri Manoj Bhat,Advocate, the said Advocate did not file Vakalatnama. Reliance was placed on cause list of this Court which shows the name of the Shri N.A.Shah, Advocate appearing for the Applicant who has not filed Vakalatnama. It is contended that the applicant has misled this Court by stating in the application that the appearance of the Advocate appearing for the applicant was not shown on the cause list. It is contended that there is a default on the part of the applicant and no case for setting aside the decree passed in the Appeal and for restoration is made out. It must be noted here that there are certain orders passed by this Court in civil Application 2918 of 2005 by which information was called from various Advocates Bar Associations and the Bar Council regarding Shri N.A.Shah, Advocate. Reports placed on record show that one Nalinikant A. Shah has been enrolled as a member of Bar Council of Maharashtra and Goa. However, the said Advocate was not member of Advocates Association of Western India. 4 Opposition to this application by the learned senior counsel for the original appellants is on the ground that the applicant herself is not sure as to who was the Advocate appointed by her to represent 4 caf2608-2819 her in the Appeal. His submission is that the applicant has misled the Court by contending that the name of her Advocate is not shown on the cause list though the name of Mr.N.A.Shah has appeared on the cause list. He submitted that there is a gross negligence on the part of the applicant. The learned counsel for the applicant has tendered an undertaking of the applicant affirmed on 10 th August 2011 stating that in the event the appeal is restored, till the disposal of the Appeal, the applicant will not enter the suit premises. 5 Considering the controversy involved, this Court has perused the Part II of the Appeal containing disposed of applications and miscellaneous papers. It is true that there is no Vakalatnama on record filed by any of the Advocates representing the applicant. Perusal of the record shows that Civil Application no.974 of 1997 was taken out by the appellants in which Mr.Manoj Bhat represented the Applicant as shown on the Farad Sheet of the said application. Order passed on the said application shows that one Mr.Shah represented the applicant on 21 st March 1997 when the said application was decided. There is correspondence placed on record which shows that the Advocate for the appellants has addressed letters pertaining to the First Appeal to Mr.Manoj Bhat, Advocate in his capacity as the Advocate representing the respondent (the Applicant) in the Appeal. There is an affidavit filed by the applicant in civil application no.4210 of 2002 in the Appeal which records that a copy of the said civil application was served by the 5 caf2608-2819 appellants to the applicant through the Advocate for the applicant. The docket of the affidavit in reply filed by the Applicant shows that the same was filed by Mr.Manoj Bhat representing the applicant. Thus, the record shows that on one occasion Mr.Shah, Advocate represented the Applicant and on another occasion Mr.Manoj Bhat represented the applicant. The correspondence shows that the Mr.Manoj Bhat was representing the applicant in the First Appeal. 6 Thus, this is not a case where the applicant has not bothered to engage an Advocate. The record shows that the applicant had engaged at least two lawyers. As far as Order XLI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) is concerned, there is no provision which requires the personal presence of the parties to the appeal on the date fixed for hearing of the appeal especially when the parties are represented by Advocates. Therefore, the applicant cannot be blamed if she remained absent when the appeal was called out for final hearing. When a litigant engages an Advocate to represent him in the appeal filed in this Court, it is not duty of the litigant to watch the cause list as the said job is of the Advocate appointed by the party. It is a matter of common knowledge that First Appeals remain pending in this Court for a long time and even for more than 10 to 15 years. It is difficult for the litigants to keep a watch on the Board for such a long time. It is true that the applicant could not make precise statement as regards the Advocate representing her in the appeal. But the fact remains that the record shows that the 6 caf2608-2819 applicant was represented by at least two Advocates in the appeal. Judgment in the appeal was delivered on 28 th February 2005 and the present application is filed on 14 th June 2005. Delay in filing the application has been explained. Therefore, this is a fit case to exercise power under Rule 21 of Order XLI of the said Code. 7 The prejudice which may be caused to the appellant is minimized by the undertaking of the applicant in which the applicant has undertaken that till the final disposal of the appeal, she will not enter the suit premises subject matter of the appeal. The said undertaking deserves to be accepted. 8 Accordingly, I pass the following order : i) Undertaking dated 10 th August 2011 filed by the applicant is accepted. The said undertaking has been filed without prejudice to her rights and contentions. ii)Civil application no.2819 of 2005 is allowed in terms of prayer clause (a). iii)Civil application no.2608 of 2005 is allowed in terms of prayer clause (a). It is made clear that as a result of allowing of prayer clause (a), the interim relief which was granted in Appeal in favour of the appellants also stands restored. iv)The appeal shall be added to the final hearing board in the week commencing from 5 th September 2011. 7 caf2608-2819 v) It is made clear that the applicant will not be entitled to seek any adjournment on any ground. JUDGE