Oral application for restoration of suit dismissed in default

Where a matter is dismissed in default on account of slight negligence on the part of the party or Advocate in appearing before the Court, an oral application for restoration may be considered if
made before the rising of the Court and it is not necessary
for the party to file an application for restoration in writing.
THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Misc. C. A. No. 677/2009 in W. P. No. 2158/2009 (d)
Sanjay Dagadappa Kapse
...Versus...
State of Maharashtra, Department of Industries, Labour and Energy,
Mr. R. V. Gaikwad, Advocate for applicant.
CORAM: S. A. BOBDE & F. M. REIS,JJ.
   DATED : 2nd     July, 2009
P. C.
1. Heard.

2. The applicant/petitioner has filed this application
for restoration of the writ petition, which was dismissed in
default.  We see no reason why the petitioner filed this
application if the petition has been dismissed in default and
it came to the notice of the Advocate on the very same day.
The Advocate could have sought restoration of the matter
on an oral application.  We are constrained to make this
observation since too often applications or motions in2
writing for restoration come up for orders before the Court,
though the dismissal came to the knowledge of the
Advocates on the same day. 
3. In P. D. Shamdasani ..vs.. The Central Bank
of India Ltd.; 1938 Bombay Law Reporter (40) 238; a
Special Bench of this Court observed in that case, the
negligence was exceedingly slight and the discretion not to
restore the matter was exercised on wrong basis.  In regard
to matters which are dismissed for non appearance and an
application is made by the party for restoration, it was
observed as follows:-
“But it is, I think, a good working rule,
which again was laid down by Sir
Norman Macleod in Sorabji v. Ramjilal
that if a person whose suit has been
dismissed summarily appears on the
same day, and produces some not
unreasonable excuse for his absence,
prima facie the Court ought to exercise
its discretion in his favour.  Of course
the applicant has no absolute right to
ask the Court to waive its rules in his
favour but it is a good working rule that
if he applies at once, and thereby shows
that his failure to appear was not due to3
desire to cause delay, but was bona
fide, he ought to generally to be given
the right to have his case restored on
payment of costs thrown away.  It is,
after all, a very serious matter to
dismiss a man’s suit or summons, or
whatever it may be, without hearing it
and that course ought not to be adopted
unless the Court is really satisfied that
justice so requires.  In this case, in my
view, the judgment of the learned Judge
could only be justified if we were
prepared to lay down the principle that
wherever there has been any
negligence or any carelessness on the
part of the applicant in failing to attend
the Court when his case was called on,
then he ought not to be subsequently
entitled to have his case restored to the
list.  I do not think that is the rule which
has been acted upon in the past, or
ought to be acted upon.  Whether the
negligence is of a kind which should be
excused or not must depend on the
facts of the particular case......”
4. In view of the law laid down in Shamdasani’s
case, we are of the view that the applicant ought to have4
resorted to the settled practice of this Court instead of filing
this application.
5. Having regard to the number of applications,
which are filed, we reiterate the observations of this Court in
Shamdasani’s case and hold that where a matter is
dismissed in default on account of slight negligence on the
part of the party or Advocate in appearing before the Court,
an oral application for restoration may be considered if
made before the rising of the Court and it is not necessary
for the party to file an application for restoration in writing.
In view of the uncontroverted averments therein,
the application is allowed.  The Writ Petition is restored to
file.
JUDGE       JUDGE
kahale

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