Allowed

Xavier Joe Gonsalves and Anr. v. Ashley S/O. Austin Gonsalves and Anr.

Bombay HC23 Mar 2007CAA/257/2007

Case brief

AI extract

What is this about?

The High Court restored a civil appeal against two respondents that was previously dismissed for non-removal of office objections, holding the litigant should not suffer for the advocate's failure. However, the appeal was not restored against the first respondent who had previously won an order, and no interim relief was restored pending final hearing.

What did the court decide?

appeal from order no.254 of 1997 restored against respondents 2 and 3; notice waived; no restoration against respondent 1; no interim relief.

Xavier Joe Gonsalves and Anr. Vs Ashley S/O… — Civil Procedure and Limitation | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.257 OF 2007
IN
APPEAL FROM ORDER NO.254 OF 1997

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 Xavier Joe Gonsalves & Anr.

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...Applicants

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vs.

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Ashley s/o Austin Gonsalves & Ors....Respondents

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Mr.G.B.Bhatt for the Applicants

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 Ms Yasmin Tavaria for Respondent Nos.1 and 2
 Ms E.A.Gonsalves for Respondent No.3.

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CORAM: A.S.OKA,J.
DATE : MARCH 23,2007.

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P.C.:

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 1. Heard Advocates for the parties. This Application for

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 restoration of the Appeal from Order which was dismissed for
 non removal of the office objections is contested by the

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 Respondents. Perusal of the record of the Appeal shows that
 compliance was not made with the conditional order dated 20th
 March 2006 as the Applicant failed to remove office
 objections. Office objection was as regards the failure to
effect proper service of notice to the second Respondent as

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 the second respondent was served by affixing. Office noting
 shows that Appeal from Order was dismissed for non prosecution
 as against the first Respondent on 1st March 2000. Therefore,
 the effect of non compliance with the conditional order dated
 20th March 2006 is that the Appeal was dismissed as against
 the other two Respondents.

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2. If an Appeal is dismissed for non removal of the office
 objections, normally, the litigant i.e. the Appellant cannot
 be blamed because it is the responsibility of either the
 Advocate or his Clerk to take steps and the litigant is not
 expected to go to the office and remove office objections.
 For this technical default on the part of the Advocate or
 Advocate’s Clerk, the litigant cannot be allowed to suffer.

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 3. Appeal from Order stands dismissed for non prosecution
 about a year back. Therefore, though the Appeal deserves to
 be restored, interim relief, if any operating during the
 pendency of the Appeal cannot be automatically restored and
 the Applicant will have to take out a separate application in
 that behalf so that the concerned Respondents can contest the
 said Application on the basis of what has transpired after the
 dismissal of the Appeal.

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 4. Hence, the Appeal deserves to be restored. As the second
 respondent is already represented by an Advocate now it is not
 necessary to serve notice of this Appeal to the second
 Respondent. It is, however, made clear that the Appeal is not
 restored as against the Respondent no.1 as by order dated 1st
 March 2000, the Appeal was dismissed as against the said
 respondent.

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 5. Hence, I pass the following order :

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i) Appeal from Order No.254 of 1997 is restored as against the second and third Respondents.

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ii) As second and third Respondents are now represented by the Advocates, it will not be necessary to issue notice of the Appeal to the said Respondents.

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iii) It is made clear that the Appeal from Order is not restored as against the Respondent No.1. It is also made clear that interim relief, if any, operating during the pendency of the Appeal is not restored. Liberty to the Appellant/Applicant to take out appropriate application for interim relief.

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iv) Application is accordingly disposed of.

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 . Place the Appeal from Order on final hearing board on 4th
 April 2007.

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JUDGE

Xavier Joe Gonsalves and Anr. v. Ashley S/O. Austin Gonsalves and Anr.

Case brief

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What did the court decide?

Xavier Joe Gonsalves and Anr. v. Ashley S/O. Austin Gonsalves and Anr.

Case brief

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What did the court decide?

What the court decided

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