1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 38/2009 Omkar Gram Vikas Society Ltd. A Society registered under the Societies Registration Act, 1860, having its registered Office at Amai Wada, Taluka Pernem, Goa and represented herein by its President Shri Vasant S. Morajkar. ............ Petitioner. Versus The Goa State Co-operative Bank Ltd., through its Managing Director, “Sahakar Sankul”, EDC Complex, Patto Plaza, Panaji, Goa. ........... Respondent. Mr. Mahesh Amonkar, Advocate for the petitioner. Mr. S. R. Rivonkar, Advocate for the respondent. CORAM : A.P. LAVANDE, J. DATE : 9th April, 2009. ORAL JUDGMENT : Heard Mr. Amonkar for the petitioner and Mr. Rivonkar for the respondent. Rule. By consent heard forthwith. 2. By this petition, the petitioner challenges the Order dated 2 21.11.2008, passed by the Civil Judge, Senior Division, at Mapusa in Civil Misc. Application No.13/2008/C in Special Civil Suit No. 118/2005/C, by which the application for restoration of the suit filed under Order IX, Rule 4 of C.P.C. has been rejected. 3. The petitioner is the original plaintiff in the above suit filed against the respondent/defendant, seeking relief of recovery of money. 4. It is the case of the plaintiff that the suit was fixed on 14.3.08 for recording evidence of the witness of the plaintiff. According to the plaintiff, on that day, Advocate for the plaintiff was not present, but the President of the plaintiff was personally present. The President of the plaintiff took the next date as 10.4.08 given by the Court Clerk and informed the same to the Advocate. It is further the case of the plaintiff that instead of recording the date as 10.4.08, the Advocate recorded the date as 14.4.08. The suit was called out on 10.4.08 and in the absence of the plaintiff and its Advocate came to be dismissed. The plaintiff filed an application under Order IX, Rule 4 of C.P.C. which was opposed by the defendant. By the impugned 3 order, the trial Court has refused to restore the suit. 5. Mr. Amonkar, learned Counsel for the petitioner submitted that the impugned order is liable to be set aside inasmuch as on account of the error committed by the Advocate for the plaintiff in recording the date, the suit has been dismissed and as such, serious prejudice has been caused to the plaintiff. He further submitted that the reasons given by the trial Court are unsustainable in law. The learned Advocate further submitted that this was the first occasion on which the suit came to be dismissed and at no point of time, the plaintiff sought adjournment. In these circumstances, he submitted that the impugned order be set aside and the suit be restored. 6. Per contra, Mr. Rivonkar has supported the impugned order. 7. Having considered the submissions made by the parties and having perused the record, I am of the considered opinion that the impugned order is liable to be set aside. The fact remains that the Advocate appearing for the plaintiff in the suit stated that he took a 4 wrong date i.e. 14.4.08 instead of 10.4.08 and therefore, he did not remain present on 10th April, 2008 when the matter was fixed for evidence of the plaintiff's witness. 8. The plaintiff cannot be made to suffer on account of the mistake committed by its Advocate in recording the date and the defendant can very well be compensated by awarding costs. 9. In view of the above, the impugned order is set aside, and Special Civil Suit No.118/2005/C is restored, subject to the petitioner paying costs of Rs.2500/- to the respondent/defendant. The costs shall be deposited in the trial Court within a period of 4 weeks. Liberty to the respondent to withdraw the same. 10. The petition is, accordingly, allowed. Rule is made absolute in the aforesaid terms. Parties shall appear before the trial Court on 9th June, 2009 at 10 a.m. A.P. LAVANDE, J. ssm.