-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.7289 of 2007 Ichalkaranji Municipal Council ..Petitioner vs. 1. Shri Mehabub Husein Naik and others ..Respondents Shri T.S.Ingale for petitioner. Shri Ganesh Gole for respondent nos. 1 and 3 Shri S.S.Patwardhan for respondent no.2. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 8th February, 2008 8th February, 2008 8th February, 2008 P.C. P.C. P.C. 1. This writ petition discloses a very sorry state of affairs including inefficiency of a public body to recover the public dues. 2. The petitioner Municipal Council filed a civil suit being civil suit no.145 of 1987 in the Court of the Civil Judge, Sr.Dn., Kolhapur against five defendants for recovery of a sum of Rs.1,12,418.55 The suit was filed on 9th March, 1987,. It is the case of the petitioner Corporation that the defendants were serving with the Council/Corporation as Market Inspector and clerks. They have failed to recover the public dues in the form of taxes and fees which are levied by the petitioner Council. They have -2- colluded with the assesses and failed and neglected to recover the tax and duty amount. This is contrary to public interest as well according to the petitioner. 3. The proceedings ought to have been followed up and contested with the same zeal as was expected at the stage of initiation. However, the record would indicate that the suit was dismissed for want of prosecution. An application was filed for its restoration. That application was also dismissed for want of prosecution. Second application was filed to restore the restoration application and in which it appears that the opponents/original defendants insisted that evidence be led as the version of the Counsel therein is false. It appears that the evidence was led and Trial Judge disbelieved the version of the Advocate having failed to notice the date of the trial in the roznama. Hence, second application in the series being dismissed, ultimately, the matter was carried in appeal and on appreciation of all the developments the Court refused the request that the original application being M.A.no.106 of 1997 be restored to its file. Thus, petitioners’ application having been rejected by -3- the impugned order, the present petition is preferred. 4. After this matter was heard for some time and I perused with the assistance of the learned Counsel appearing for the petitioner, the petition and annexures thereto including the impugned order, it appears to me, that the learned Judge ought to have restored the restoration application so as to subserve the public interest. It is clear from a perusal of the order passed that the contention raised before the Trial Court was that there is a bonafide mistake on the part of the Advocate to note down the date in his diary. It appears that the diary itself was produced. However, the learned Judge has referred to Order 9 Rule 4 read with section 146 of the Code of Civil Procedure and also Order 9 Rule 3 and held that the subject application itself was not maintainable but proceeded to reject the same on merits. 5. The learned Judge ought to have taken a liberal view of the matter only in so far as restoration application is concerned. Once the Advocate has placed on record an affidavit so -4- also the the petitioner examined the witness, the learned Judge should have granted an opportunity in the peculiar facts of this case to the petitioner to atleast argue its restoration application. It is not a case where the litigation was between the private parties. For good reasons and atleast for negligence of the Counsel, public interest should not be a casuality. In the present case time devoted by the court to the restoration application ought to have been utilised for considering the request for restoration and if that itself had no merit, the further exercise was futile. 6. It is in this light that I am of the view that instead of restoring the suit it would be appropriate to give last opportunity to the petitioner to argue its restoration application once again. In the peculiar facts of this case and when the public interest suffers on account of the nature of the suit, the petitioner’s counsel must have the last opportunity to apply for restoration. Hence Misc.Application No.106 of 1997 is restored to file of the learned Trial Court by quashing and setting aside the impugned order. Restoration application may now be heard on its own merits and in accordance with law. -5- However, the petitioner’s Counsel to pay costs quantified at Rs.25,000/- in the Trial Court and only upon the said costs being tendered the Trial Court would restore the restoration application or else the impugned order stands and writ petition would be dismissed without further reference to Court. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)