1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7795 OF 2008 Baban Shankar Gite .. Petitioner versus Sulochana Maruti Shinde & Ors. .. Respondents Mr.Tushar Sonawane for the petitioner. Mr.M.S.Karnik for the respondent No.1. CORAM : A.S.OKA, J. DATE : 5th October 2009. P.C: . Heard learned counsel appearing for the petitioner and learned counsel appearing for the 1st respondent. An appeal preferred by the petitioner for challenging a decree for partition was dismissed in default when his advocate was absent. The appeal was dismissed on 21st March 2006. 2. Thereafter, the petitioner applied for restoration of the appeal by making an application under Rule 19 of Order XLI of the Code of Civil Procedure, 1908. There was a delay of about 19 months. By the impugned order, application for condonation of delay has been dismissed. 3. The learned counsel appearing for the petitioner submitted that the petitioner had done everything which he could do by engaging an advocate for prosecuting the appeal and by filing the private paperbook. He placed reliance on the decision of the Apex Court in the case of Rafiq and another Vs. Munshilal and another (AIR 1981 Supreme Court 1400). The learned counsel appearing for 2 the 1st respondent submitted that the 1st respondent could not get fruits of the decree passed in the year 1999 as a result of the pendency of the appeal and the pendency application made by the petitioner. He submitted that the petitioner was negligent and hence no interference is called for. 4. The Appellate Court has noted that date of hearing of the appeal was 22nd February 2006. On that day and on dates which were fixed subsequently i.e 26th February 2006, 8th March 2006, 26th March 2006, the advocate for the petitioner and the petitioner were absent. It appears that paperbook in the appeal was ready and therefore the appeal was posted for hearing. Once the appellant had engaged an advocate for prosecuting the appeal, personal presence of the appellant before the District Court was not necessary unless the District Court had issued an order to that effect. This is not a case where the District Court had called upon the petitioner to personally remain present. It is apparent that as advocate appointed by the petitioner remained absent, the appeal was dismissed. The averment made in the application for condonation of delay is that the petitioner became aware of the dismissal of the appeal on 6th August 2007. On the next day an application for certified copy of the order of dismissal was made. The application for restoration was filed on 22nd August 2007. In view of the law laid down by the Apex Court in the case of Rafiq (supra), it is obvious that the Appellate Court has taken a very hyper-technical view of the matter. In fact this was a case where delay ought to have been condoned. It is true that the 1st respondent will suffer prejudice if delay is condoned as ultimately the appeal is bound to be restored. The prejudice caused to the 1st respondent can be compensated by ordering payment of costs. For the reasons which are set out in the application for condonation of delay, it is obvious that even the appeal will 3 have to be restored. If after condonation of delay the application for restoration remains pending, there will be further prejudice to the 1st respondent as hearing of the appeal will be further delayed. Hence, instead of keeping the application for restoration pending, by this order, the appeal can be restored. 5. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order dated 24th October 2008 is quashed and set aside. (b) Misc.Application No.150 of 2007 is allowed. The Regular Civil Appeal No.41 of 2007 is restored to the file of the District Court. (c) The petitioner will pay costs of Rs.7,500/- to the 1st respondent within a period of eight weeks from today. The deposit of the amount of costs with the District Court will be treated as sufficient compliance. (d) The District Court will decide the appeal as expeditiously as possible and in any event on or before 31st January 2010. (e) The writ petition is allowed in above terms. (A.S.OKA,J)