1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.157 OF 2004 WITH CIVIL APPLICATION NO.500 OF 2004 Mr.Balasaheb Dhanpal Patil ..... Appellants & Ors. vs. Babu Balu Bele (deceased) ..... Respondents thru LRs Ajit Bele & Ors. Mr.N.J. Patil, Advocate for appellants. Mr.Amit Sale, Advocate for respondents no.1A to 1E. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 7th December, 2009. PC : 1. The subject matter of this appeal is confirmation by the first appellate court of the order of the trial court dismissing the appellants application for restoration of their suit. The appeal is opposed by the respondents, the original defendants. 2. The facts of the case disclose that as the appellants had not been attending to the Court, their Advocate withdrew his appearance vide pursis dated 31st December 1988 (Exhibit 40). Thereafter the appellants sought several adjournments vide applications at Exhibit 42 to 45 for engaging new counsel to represent them. Even thereafter further more opportunities were given to the appellants to engage a lawyer. However, none of the opportunities were availed of and finally on 31st August 1990, the suit was dismissed for default. 2 3. In their application for restoration, the appellants contended that on 31st August 1990, the appellant no.1 started from his village Mallawadi located at a distance of 11 km. from Miraj to come to the Court. But as he missed his bus, he could reach the Court only at 1.30 pm. By that time, the suit was dismissed for default and therefore he returned to his village. Then he engaged a lawyer and filed the application on 20th September 1990. 4. The Courts below found that there was no material whatsoever to support the claim of the appellants that appellant no.1 had reached the Court on 31st August 1990 at about 1.30 pm. There was no application made for restoration on the very day. No tickets for the bus journey produced by him. Further the evidence led by the parties showed that the frequency of buses on the route to village Mallewadi was good. Lastly, the trial Court noted that as the suit filed by the appellants was for simplicitor injunction, no any irreparable loss or injury will be caused to the appellants if the same is not restored. 5. The appeal Court found further negligence on the part of the appellants. The appeal as filed was under Order 41, Rule 1 Code of Civil Procedure was not maintenance. The appeal ought to have been filed under Order 43, Rule 1 Code of Civil Procedure. The respondents had raised an objection on maintenability of the appeal. The appeal Court found that during the pendency of 10 years of the appeal, no steps were taken by the appellants in order to correct the mistake in filing the appeal under Order 41, Rule 1 Code of Civil Procedure by 3 requesting the Court to convert the same to the appeal under Order 43, Rule 1 Code of Civil Procedure. The appeal was dismissed as not maintenable. 6. The appeal Court also considered the case on merits. It found for the very reasons as given by the trial Court that no case whatsoever was made out by the appellants for setting aside the impugned order and that the record disclosed that the appellants were absolutely negligent in attending to the matter and did not deserve restoration of the suit. The findings of the Courts below are completely supported by the material on record. Therefore, the same cannot be interfered with. There is no substantial question of law arising for consideration of this Court. Therefore, the Second Appeal is dismissed. 7. In view of the dismissal of the Second Appeal, the Civil Application No.500 of 2004 does not survive, the same is accordingly dismissed. (Smt.R.P.SondurBaldota, J.)