JUDGMENT :

Abhilasha Kumari, J.

Leave to amend the memorandum of the petition at Page 1, so as to include "Article 227", is granted. The necessary amendment be carried out, forthwith.

2. By preferring this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the impugned order dated 13.02.2014, passed by the City Civil Court below the application at Exhibit 11, whereby the application for condonation of the delay of eleven years, that has occurred in filing the application for restoration of Civil Suit No.3121/1983, has been rejected.

3. Briefly stated, the facts of the case are that the petitioner is the original plaintiff, who had instituted Regular Civil Suit No.3121/1983, seeking an order of dissolution of the partnership firm as well as for getting the amount recovered as a partner of the partnership firm in the name and style of "Shri Jay Jay Ambe Corporation".

3.1. According to the petitioner, the defendants therein did not defend the suit or file their written statement. Subsequently, with the consent of the learned advocate for the petitioner, the written statement was permitted to be filed. Thereafter, the suit remained pending. According to the petitioner, during the pendency of the suit, the respondents-original defendants had filed another suit before the Court of Small Causes. The petitioner required certain papers that were part of the suit from which the present proceedings have emanated, therefore, he took away the entire brief of his pending suit from the advocate. During this period, the suit came up for hearing, in the year 2002. The advocate for the petitioner wrote a letter to the petitioner, informing him that the suit had been listed on the Board. According to the petitioner, the letter came to be misplaced by him; therefore, the advocate could not be contacted. The learned advocate for the petitioner informed the City Civil Court that certain papers had been taken away by the petitioner. The said Court granted several opportunities to the petitioner. It is the case of the petitioner that his advocate did not inform him that the Court had granted such opportunities. The suit was listed on the Board and as it was not attended to, the City Civil Court passed an order, dismissing the suit for default, on 29.10.2002. It is further the case of the petitioner that he was not keeping good health and the advocate appearing for him also passed away. Due to these "unavoidable" circumstances, the petitioner was unaware of the passing of the order dated 29.10.2002, dismissing the suit for default. When he came to know of the said order, he filed an application for restoration, on 18.01.2013. Objections were filed by the respondent (original defendant) to this application. After hearing the respective parties, the City Civil Court passed the impugned order rejecting the said application. Aggrieved thereby, the petitioner has approached this Court by way of the present petition.

4. Ms. Mita S. Panchal, learned advocate for the petitioner submits that the order passed by the Court below is unjust, improper and illegal, hence, deserves to be quashed and set aside.

4.1. It is further submitted that though it is true that the papers of the plaint were taken away by the petitioner, however, this was done only with a view to defending another suit filed by the defendant, before the Court of Small Causes. The advocate for the petitioner had not retired from the case, therefore, it was his duty to point out this aspect to the Court when the suit was listed before it. In failing to do so, the advocate failed to discharge his duty and the petitioner ought not to be made to suffer due to the negligence of the advocate.

4.2. It is contended that if the suit is not restored, the petitioner would lose for all times to come, therefore, the City Civil Court ought to have taken a lenient and pragmatic view by condoning the delay, in the interest of justice.

4.3. It is urged that the petitioner had re