vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3945 OF 2009 WRIT PETITION NO.3945 OF 2009 WRIT PETITION NO.3945 OF 2009 Malan Damodar Thakar & Anr. ... Petitioners V/s. Kashinath tukaram Worlikar & Anr. ... Respondents Mr.R.V. Bansode for Petitioner Mr.P.M. Gaonkar for Respondent Nos.1, 2 and 3 CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: MAY 5, 2009 MAY 5, 2009 MAY 5, 2009 P.C.: P.C.: P.C.: . The Petitioners are aggrieved by the order of the Appeal Court of the Small Causes Court dated 16.3.2009 in Appeal No.56 of 2009. The appeal was preferred against the order dated 19.12.2008 passed by the trial court in Miscellaneous Notice No.202 of 2008 in RAE Suit No.774of 2006. This Miscellaneous Notice was taken out by the Petitioners for setting aside the ex-parte decree dated 3.3.2007 in RAE Suit No.774 of 2006. 2. The Respondents have filed the aforesaid suit against the petitioners for eviction of the petitioners from the suit premises being Room No.8, House No.112/9, Dr.Mantri Galli, Worli Koliwada, Worli, Mumbai-400025. During the pendency of this suit which had originally been filed against the husband of the petitioner No.1 : 2 : and father of Petitioner No.2, the original defendant expired and, therefore, the petitioners were brought on record. It appears that the suit was dismissed on 17.10.2005 as the plaintiffs, that is, the Respondents herein could not establish their case for eviction of the tenant. 3. Thereafter, the respondents preferred another suit being RAE Suit No.774 of 2006 against the present petitioners seeking the same relief and on the same cause of action, according to the petitioners. The petitioners contend that on being served with the writ of summons they handed over the papers to an advocate and petitioner No.1 had signed the Vakalatnama in his favour. They further contend that the advocate instructed them not to bother to attend the Court till he directed them to do so. On 3.3.2007, an ex-parte decree was passed against the petitioners and they were directed to deliver vacant and peaceful possession of the suit premises. 4. The respondents took out Miscellaneous Notice No.391 of 2007 for execution of the decree and recovery of possession of the premises. When this notice was served on the petitioners they realised that a decree was passed against them. The petitioners contend that thereafter they approached the office of the advocate : 3 : and learnt from his son who is also a practicing advocate, that their advocate had expired. The petitioners were handed over the case papers on a subsequent date and thereafter they engaged another advocate when they learnt that the ex-parte decree had been passed against them on 3.3.2007. 5. The Petitioners then moved Miscellaneous Notice No.202 of 2008 for condoning the delay of 509 days and for setting aside the ex-parte decree. The notice was discharged on 19.12.2008. The trial Court held that the Petitioners had not established any case for condoning the delay in having the decree set aside. The trial Court it appears was impressed with the fact that the Petitioners not only did not attend the RAE Suit No.774 of 2006 but also the earlier suit bearing No.RAE Suit No.202 of 2001. The trial Court has disbelieved the petitioners’ story that the advocate took no action despite them having handed over the notice of execution to him. 6. The Petitioners then preferred appeal No.56 of 2009 challenging the trial Court’s order. The appeal was dismissed and the order of the trial court was confirmed. The petitioners have preferred the present petition against both these orders. : 4 : 7. The learned advocate for the petitioners has submitted that there was no reason for the petitioners to name a particular advocate when she would not stand to benefit in any way by naming him as the person who she had briefed in the matter. He submits that Petitioner No.1 is an illiterate woman and therefore, the Courts should have been more lenient while deciding the application for condoning the delay. He further submits that it is well settled by several judgments of the Supreme Court as well as this Court that a litigant should not be penalised for the mistakes of an advocate. According to him, the advocate who was briefed had been negligent in filing the Vakalatnama and attending the Court and therefore, the petitioners should not be made to suffer for his negligence. He then submits that although the son of the advocate who was briefed has filed an affidavit before the court, that ought not to have been believed since the petitioners had no opportunity to cross-examine him. 8. The learned advocate for the respondents has submitted that the trial Court and the appellate Court have rightly dismissed the application for condoning the delay. He submits that the son of the advocate who was allegedly briefed has categorically denied that his father was engaged by the petitioners or that the petitioners had taken away the case papers from their : 5 : office, after learning of his father’s demise. He further submits that the petitioners have made out no case for condoning the delay. 9. It appears that the trial Court and the appellate Court were impressed by the statements made on affidavit by the son of the advocate who was briefed by the petitioners. Admittedly, this person is also a practising advocate. He has stated that his father had expired on 23.5.2008 i.e. after the ex-parte decree which was passed on 3.3.2007. Surprisingly, however, the trial court did not think it necessary to permit the petitioners to cross-examine the advocate and merely relied on his affidavit which was produced by the respondents. In my opinion, this procedure adopted by the trial Court as well as the appellate Court is erroneous. The trial Court or the appellate Court ought not to have been swayed by the fact that the advocate who the petitioners had instructed had died and ought to have considered whether there was any negligence on his part. It is difficult to accept that the petitioners would name a particular advocate out of the blue as they would have no reason to do so. Nor would they stand to benefit in any manner by naming an advocate, and contending that he was negligent in conducting their case. It is difficult to appreciate why the Petitioners would only name one particular advocate and not any : 6 : other out of the many other practising advocates. The version of the Petitioners is not far fetched for it to be disbelieved. 10. Considering the facts and circumstances in this case, I am of the view that the delay must be condoned. The orders impugned are therefore set aside. The delay in preferring the notice for setting aside the ex-parte decree is condoned and the ex-parte decree is set aside. The Petitioners shall file their written statement within a period of four weeks from today. 11. Writ petition is disposed of accordingly.