1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CIVIL APPLICATION NO.8977 OF 2007 IN MCA.ST. 19170/2007 IN SECOND APEPAL NO.62/1988 Zibu s/o Raghunath Giradkar & ors ..vs.. Gunabai Tularam Tukey & ors - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri P.A. Markandewar, advocate for applicant Shri A.K.Nandanwar, advocate for respondent CORAM : SMT.VASANTI A.NAIK, J. DATE : APRIL 29, 2010. Heard the learned counsel for the parties. By this civil application, the applicant is seeking condonation of delay of 2 years 26 days in filing the application for restoration of the second appeal. It is stated in the civil application that the appeal was listed before the court for bringing the legal heirs on record and accordingly the memorandum of appeal was amended on 23.2.2005 after the court permitted the application for bringing the legal heirs on record. When the appeal was again listed before the court on 10.3.2005, it is the case of the applicant that inadvertently the counsel for the appellant failed to mark the case, on that date and consequently the appeal was dismissed in default. The appellants became aware of the dismissal of the second appeal only when they received the notice of final decree proceedings on 14.11.2007. Immediately, the appellants rushed to the counsel and the application for restoration was filed. It is the case of the applicants that the delay in filing the application for restoration is bonafide and the same needs to be condoned. The respondent has filed reply to the application and has stated 2 that the appellant has not shown any plausible explanation and that the application is liable to be dismissed. The learned counsel for the respondent relied on the decision reported in ALL SCR 2010 Page 816 to substantiate his submission that the application is liable to be dismissed, as no plausible explanation is submitted by the applicant in the application. On hearing the learned counsel for the parties and on perusal of the application and the reply, it appears that the delay in filing the restoration application needs to be condoned. A party cannot be made to suffer because of the mistake of his counsel . Moreover, it is the case of the applicant that inadvertently the counsel had failed to mark the case on 10.3.2005 and unfortunately the appeal was dismissed in default on that date. There is sufficient explanation for the delay caused in filing the appeal. However, since the delay in filing restoration application is considerable the prayer made in the civil application is granted subject to payment of costs of Rs.2,000/- in the High Court Legal Services Sub Committee, within a period of 10 days. Hence for the reasons stated in the civil application, the prayer made in the civil application is granted and the delay in filing the application for restoration is condoned. Civil application is allowed in the aforesaid terms and disposed of. JUDGE M.C.A.STAMP NO.19170/2007 Heard the learned counsel for the parties. Perused the contents of the civil application . The learned counsel for the respondent strongly opposes the prayer made in the civil application. However, for the reasons stated in the civil application, the prayer made in the civil application is granted and the second appeal is restored to file subject to payment of costs of 3 Rs.1000/- in the High Court Legal Services Sub Committe, within a period of 10 days. M.C.A. is allowed in the aforesaid terms and disposed of. JUDGE smp