IMPORTANT POINT
Default committed by Advocate cannot be considered as default on part of the party and for such default, party cannot be penalized.

JUDGMENT (ORAL)

Rule. Rule is made returnable forthwith.

2. Matter is taken up for final disposal at the admission stage itself.

3. Heard Mr. Kulkarni, learned Counsel for the Petitioners and Mr. J.J. Mulgaonkar with Ms. Shweta Parulekar, learned Counsel for the Respondent.

4. The controversy in the present petition is in connection with an order dated 05/10/2023 passed by the trial Court whereby an application for setting aside an ex-parte order dated 08/05/2023 filed by the Petitioner/Defendant stands rejected.

5. Mr. Kulkarni submits that the respondent filed a suit for specific performance of contract wherein the summons was issued to the Defendant. The summons was served on the Defendant and accordingly the Defendant/Petitioner appeared through his Advocate and thereafter the matter was fixed for written statement as well as reply. He submits that the Petitioner filed an application for extension of time to file a written statement on 08/03/2023 and thereafter on 17/04/2023. Both these applications were allowed and the matter was posted on 08/05/2023 for filling of the written statement. He submits that when the matter was taken up on 08/05/2023, the Petitioner remained absent so also his Advocate. The learned trial Court passed an order to proceed ex-parte and placed the matter for ex-parte evidence.

6. Mr. Kulkarni submits that an application was filed for setting aside ex-parte order on 10/07/2023 giving reasons that the earlier Advocate appearing for the Petitioner withdrew his Vakalatnama and issued notice to the Defendant which was served two days prior to the date fixed on 08/05/2023. He submits that the Petitioner being senior citizen was unable to engage another Advocate within the short time and was unable to attend the Court. He submits that the notice by his earlier Advocate was not served 7 days in advance as required. He submits that the above ground was sufficient enough to condone the delay as well as to set aside the ex-parte order since the matter was pending for further evidence of the Plaintiff.

7. Per contra, Mr. Mulgaonkar submits that there is no explanation coming forward from the Petitioner as to why he failed to appear on 08/05/2023 and also on the subsequent date i.e. 30/06/2023 when the ex-parte evidence of the Plaintiff was recorded and the matter was fixed for further evidence. He submits that the application was filed beyond time without any prayer for condonation and also without giving sufficient explanation.

8. Mr. Mulgaonkar submits that ground which has been raised today was not before

the trial Court and that the Petitioner has raised the ground that he did not receive any notice of his Advocate. However, the trial Court found that such notice was received two days in advance.

9. The record clearly goes to show that the Petitioner was duly served with the summons and accordingly he appeared though his Advocate and filed the application for time to file the written statement. On the second occasion such application was allowed and the matter was fixed for written statement on 08/05/2023.

10. The record further shows that when the matter was called out on 08/05/2023, the Petitioner along with his Advocate remained absent and therefore the learned trial Court passed an order directing to proceed ex- parte against the Defendant. The matter was fixed for evidence of the Plaintiff.

11. It is the matter of record that the earlier Advocate of the Petitioner issued a notice to the Defendant intimating that he will be withdrawing his Vakalatnama. This notice was admittedly served on the Petitioner two days prior to 08/05/2023. It is also admitted fact that the Advocate failed to appeal before the trial Court on 08/05/2023 in order to intimate the trial Court that he be permitted to withdraw his Vakalatnama for and on behalf of the Petitioner.

12. In the matter of civil nature, normally the Advocate appears for the party and the party need not be present on all dates. Since the matter was fixed fo