Smt. Chandrakala Wd/O Champat Kamble And 2 Others v. Shri Ganesh S/O Narayan Thakre And Another

1 cao1830.19

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR CIVIL APPLICATION (CAO) NO.1830 OF 2019 AND MISC. CIVIL APPLICATION (ST) NO. 17321 OF 2019 IN FIRST APPEAL NO.232 OF 2003(D) (SMT. CHANDRAKALA CHAMPAT KAMBLE & OTH....VS.. GANESH NARAYAN THAKRE & ANR.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Gopal Mishra, Advocate for Applicant/Appellant. Shri J.S.Wankhede, Advocate for Respondent No.1. Shri H.V.Thakur, Advocate for Respondent No.2. CORAM : ANIL S. KILOR, J.

DATED : OCTOBER 28, 2021.

Heard.

2.

This is an application for condonation of delay in filing restoration application. There is delay of 4606 days in filing application for restoration of First Appeal No. 232 of 2003.

3.

Shri Gopal Mishra, learned counsel for the applicant submits that on 18/06/2003 First Appeal came to be admitted and thereafter it was listed on 16/10/2006 when this Court had granted 8 weeks' time to file private paper book by passing conditional order and because of non-filing of the paper book within the stipulated period the appeal came to be dismissed on 16/10/2006. It is submitted that though the paper book was ready it was inadvertently not filed within the

2 cao1830.19 stipulated period. However, when the inquiry was made in the Registry in July 2019 about the status of the appeal, it was revealed that because of conditional order, the appeal was dismissed long back in the month of December 2006 and therefore, the application for restoration was filed. However, because there was delay, the present application has been filed.

4.

Shri Mishra, learned counsel for the applicant submits that the delay has been properly explained by the applicant and it is due to inadvertence on the part of the Advocate, paper book was not filed within the stipulated period, but because of conditional order the appeal was dismissed. It is submitted that client should not be suffered for the mistake of the counsel and therefore it is prayed that by considering the explanation given in the application, delay caused in filing the application for restoration may be condoned, in the interest of justice. 5.

On the other hand, Shri Thakur, learned counsel appearing for the respondent No.2 and Shri Wankhede, learned counsel appearing for the respondent No.1 strongly opposed the application and submit that the counsel ought to have been diligent in this matter when the conditional order was passed. By arguing so, both the learned counsel pray for dismissal of the application.

6.

I have considered the contentions of the both the parties. It appears from the explanation that the

3 cao1830.19 Advocate for the applicant inadvertently did not file the paper book within the stipulated period as per the order dated 16/10/2006 and therefore, the appeal was dismissed. It is settled law that the client should not be suffered for the mistake of the lawyer and therefore, I am of the opinion that this is a fit case to adopt liberal approach while considering the application for condonation of delay. Hence, I pass the following order. The Civil Application is allowed in terms of prayer clause of the application.

In view of above, Misc. Civil Application Stamp No. 17321 of 2019 is allowed in terms of its prayer clause.

JUDGE RRaut..