Annasaheb Virupaksha Bidre vs Shri Data Tatoba Patil, Shri ...
2005 Latest Caselaw 9 Bom

JUDGMENT

Abhay S. Oka, J.

1. The Appellant has taken exception to the Judgment and order dated 9th July 1993 passed by the learned Addl.District Judge, Kolhapur in Misc. Application No. 208 of 1992. The Appellant is the original Defendant. The suit filed by the Respondents was decreed by the trial Court on 17th September 1987. An Appeal was preferred by the Appellant in the District Court for challenging the Judgment and Decree of the of the trial Court. The said Appeal was admitted and on 17th November 1982. The appellate Court stayed the execution of the decree passed by the trial Court. When the Appeal came up for hearing on 28th July 1992, the Appellant and his Advocate were absent and therefore, the Appeal came to be dismissed for default.

2. An Application was moved by the Appellant under Order LXI Rule 19 of the Code of Civil Procedure, 1908, (hereinafter referred to as "the said Code") for setting aside the order of dismissal and for readmission of the Appeal. The said application was opposed by the Respondents. The Application for restoration was filed on 18th September 1992 on various grounds. The main ground was that the Appellant was a very old man and due to his old age he did not contact his Advocate every now and then. According to the Appellant he was under the impression that whenever the matter would come up for hearing, his Advocate would inform him about the date fixed for the hearing. The said Advocate did not inform him about the date fixed for hearing and therefore, he did not attend the Appeal on the date when it was fixed for hearing. This Application has been rejected by passing the impugned order.

2. Initially the Appellant filed Civil Revision Application No. 939 of 1993 for challenging the impugned order. On 29th October 1993 Rule was issued and interim relief was granted in terms of prayer Clause (c). On 25th April 1996 the Revision Application came up before this Court. On Civil Application No. 4292 of 1995 filed by the Appellant, this Court allowed the said Civil Revision Application to be converted in Appeal from Order. The Office was directed to register an Appeal from Order. Though a formal order of admission of the Appeal was not passed, on 25th April 1996 while disposing of the Civil Application No. 4292 of 1995, this Court observed that the Appeal was expedited. I find from the record that there was no Application filed in the Appeal from Order for interim relief and there is nothing on record to show that after the Revision Application was allowed to be converted into an Appeal from Order, any interim relief was granted by this Court.

3. The learned Counsel for the Appellant submitted that the Appellant had engaged services of an Advocate. The Advocate did not inform the Appellant the date of hearing. It appears that the Advocate also did not appear when the Appeal preferred by the Appellant was kept for final hearing before the District Court. The learned Counsel contended that at that time the Appellant was 70 years old and was suffering from blood pressure and diabetics. The Appeal was dismissed on 28th July 1992 and the Application under Order LXI Rule 19 of the said Code was filed on 18th September 1992. The learned Counsel therefore submitted that the Application made by the Appellant ought to have been allowed and the Appeal ought to have been restored. She submitted that merely because medical certificate was not produced, the application for restoration could not have been rejected by the learned Appellate Court.

4. The learned Counsel for the Respondents has relied upon a short affidavit-in-reply filed in this Appeal. He has invited my attention to the relevant portions of the affidavit-in-reply. He submitted that though a Civil Revision Application was not maintainable against the impugned Judgment and Order, the Appellant filed Revision Application and interim relief was granted in the Revision Application. The learned Counsel submitted that the Appellant engaged the services of an Advocate who was not regularly practicing in the District Court at Kolhapur and the Appellant had chosen to engage the services of a lawyer who was from Tasgaon. He submitted that the ground of alleged illness of the Appellant is not established. It is submitted that the Appellant was totally negligent and therefore, he was not entitled to any indulgence.

5. I have considered the rival submissions. It is an admitted position that the Appellant had engaged the services of an Advocate. On the date fixed for hearing of the Appeal, the Advocate was not present. When an Advocate was engaged by the Appellant, it was his responsibility to remain present on the date fixed for hearing of the Appeal. The presence of the Appellant in person on the date fixed for hearing was not mandatory. The Appellant as litigant cannot be blamed if he was not present on the date fixed for hearing of the Appeal when he had engaged services of an Advocate. In my view, the Appellant cannot be blamed for default on the part of his Advocate.

6. The Appeal was dismissed on 28th July 1992 and within a reasonable time i.e. on 18th September 1992 an Application for restoration of the Appeal was filed. In this view of the matter, the learned District Judge ought to have adopted a liberal approach and restored the Appeal.

7. It is true that the Respondent will suffer prejudice because of the restoration of the Appeal. Initially a wrong proceeding was filed in this Court which prevented the Respondents from enjoying fruits of the decree. Therefore, while restoring the Appeal, the Respondents will have to be compensated. The Respondent can be adequately compensated by payment of costs of Rs. 5000/- which will be a condition precedent.

8. In so far as the interim relief pending the Appeal is concerned, as stated earlier, it appears that an Application for interim relief was not made after Revision Application was converted into Appeal from order. It will be for the Appellant to apply for interim relief afresh before the District Court and the District Court will consider the said Application on merits taking into account the conduct of the Appellants and all other relevant circumstances.

9. Hence the following order is passed:

(i) The impugned order is quashed and set aside. Misc.Civil Application No. 208 of 1992 is allowed. Civil Appeal No. 268 of 1987 is restored to file subject the Appellant paying costs of Rs. 5000/- to the Respondents within a period of four weeks from today. If the amount of costs is not accepted by the Respondents, it will be open to the Appellant to deposit the same in the Appellate Court within the stipulated time. In case there is a failure to pay or deposit the amount within the stipulated time, the order of dismissed of Misc.Civil Appeal No. 268 of 1987 will stand.

(ii) The parties are directed to appear before the learned Addl.District Judge, Kolhapur, on Monday 21st March 2005 for fixing the date of hearing. The learned Addl. District Judge will decide the Appeal finally as expeditiously as possible and preferably on or before 31st August 2005.

(iii) The Appeal is allowed in the above terms.

(iv) The parties and the concerned Court to act on the authenticated copy of this order.