Burne whether the applicant was entitled to restoration of a dismissed Civil Revision Application after providing reasons for the lawyer's default. Held final indulgence granted, costs condition imposed, merits kept open.
Civil Revision Application restored to file provided costs of Rs.5,000/- are deposited.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
cac-402.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.402 OF 2015 IN CIVIL REVISION APPLICATION NO.206 OF 2006
M/s. T.A.A. Construction : Applicant. Versus The Kalyan Agricultural Produce Committee : Respondent.
Mr. Kishore M Jawle for the Applicant. Mr. Kirit J Hakani a/w Ms. Reena Parmar for the Respondent.
CORAM : R. M. SAVANT, J. DATE : 09th October 2015
P.C.
1 The above Civil Application has been filed for restoration of the above Civil Revision Application which has stood dismissed for non-prosecution on account of the non-appearance of the learned Advocate for the Applicant on 26/03/2015. Whilst dismissing the above Civil Revision Application for default, the learned Judge has recorded that on an earlier occasion also the Civil Revision Application was dismissed for default on 02/07/2014 and restored it on 15/01/2015.
2 The reasons why the learned Advocate for the Applicant could not appear have been mentioned in paragraphs 2 and 3 of the Civil Application.
The learned counsel for the Applicant states that it is in the said circumstances mentioned in the said paragraphs that he could not remain
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present before the Court, resulting in the dismissal of the above Civil Revision Application.
3 The above Civil Application has been opposed to on behalf of the Respondent by filing affidavit in reply. In the said reply the dismissal of the Civil Revision Application on the earlier occasions has been referred to. However, in so far as the Civil Revision Application is concerned, it is required to be noted that none had appeared for the Respondent also on the day when it was dismissed for default and therefore it is not a case where the Respondent was represented on the said day, but on account of the absence of the learned Advocate for the Applicant, that the matter could not be proceeded with.
4 In my view, a final indulgence is required to be shown to the Applicant as the Applicant should not suffer on account of any act of the advocate. In that view of the matter the above Civil Application is required to be allowed and is accordingly allowed. The above Civil Revision Application is restored to file. Since the Respondent was not represented on day when the above Civil Revision Application was dismissed for non-prosecution, the Applicant to deposit the costs of Rs.5,000/- with the Maharashtra Legal Aid Fund. Payment of costs would be a condition precedent. The above Civil Revision Application to be taken on board only after the Applicant files evidence of payment of the said costs. In so far as the above Civil Revision
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Application is concerned, all the contentions on merits are kept open. The above Civil Application is accordingly disposed of.
[R.M.SAVANT, J]
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C E R T I F I C A T E
Certified to be true and correct copy of the original signed Order.
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3 issues framed by the court
Whether the applicant was entitled to be granted final indulgence to restore the Civil Revision Application dismissed for default due to advocate's non-appearance.
Whether the condition precedent of depositing costs must be fulfilled before the restored application is taken on record.
Whether the merits of the Civil Revision Application can be decided in the interim.
M/s. T.A.A. Construction
The Kalyan Agricultural Produce Committee
R. M. Savant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
