JUDGMENT - P.B. SAWANT, J.:---This petition is filed under Article 227 of the Constitution, seeking to challenge the order dated 3-10-1974 passed by the Bench of the Small Causes Court, Bombay, in Revision Petition No. 52 of 1974. 2. The few facts leading to the present petition are as follows :--- 3. The petitioner is a tenant of the suit premises being a shop situate on Plot No. 62/A, Chembai Road, New Kantawadi, Bandra (West), Bombay---50. The respondents Nos. 1 and 2 are the landladies of the suit premises. The respondents-Landladies had filed a suit being R. A. E. Suit No. 7428 of 1966 against the present petitioner who was defendant No. 3 in the said suit and one Attaulla Cheddi and Sahadatali Mohamed Hanif who were defendants Nos. 1 and 2 in the suit. Defendant No. 1 Cheddi was the original tenant of the suit premises and Defendants Nos. 2 and 3 claimed to be the assignees from the said Cheddi by a registered deed of assignment dated 29-4-1965. The suit was filed for eviction and possession of the suit premises on the ground of arrears of rent, subletting acquisition of suitable alternative accommodation and bona fide requirement. The said suit was contested only by defendants Nos. 2 and 3 and defendant No. 1 was absent. The suit was fixed for hearing on 28-2-1973. On that day none of the defendants or their Advocates were present with the result that the suit was decreed ex parte on the said date. It appears that thereafter an obstructionist notice was taken out on 24-7-1973 against one Shaikh Mohamed Hussain and the same was made absolute on 17-9-1973. The petitioner learnt about the ex parte decree on 22-8-1973 and hence made an application being Miscellaneous Notice No. 1055 of 1973 on 31-8-1973 for setting aside the said ex parte decree. In the said application one T.P.C. Nair, Advocate who was representing the petitioner in the case filed his affidavit dated 3-9-1973 in which he alleged that he was incharge of the matter and that he had failed to inform the defendant No. 3 about the date of the hearing of the suit. He further stated in the said affidavit that he was Advocate on record for defendant No. 3 in the suit and he had taken the responsibility to intimate the date of hearing of the suit to his client. He further stated in the said affidavit that he was Advocate on record for defendant No. 3 in the suit and he had taken the responsibility to intimate the date of hearing of the suit to his client. He was very much upset in the months of November and December 1972 and January 1973 on account of his mothers sickness since she was suffering from cancer and therefore could not make personal enquiries about the suit and missed the suit and therefore he could not and did not inform defendant No. 3 about the date of hearing, nor could he himself remain present on 28-2-1973 when the suit was decreed ex parte. In this application an ex parte stay at the execution of the decree was granted and the hearing of the application was fixed on 2-10-1973. In the meanwhile on and from 20-10-1973, admittedly, the said Advocate Nair was debarred from practising, by the Bar Council of Maharashtra for a period of three months. It appears that the hearing of the said application which was fixed on 2-10-1973 was adjourned to 13-11-73 and subsequently it was further adjourned to 21-11-1973 for enabling the plaintiffs to file a reply to the application for setting aside the ex parte decree. On 21-11-1973 neither the petitioner nor his Advocate was present with the result that the application was dismissed on the same day and thereafter possession of the suit premises was taken on 5-12-1973. 4. The petitioner thereafter made an application for restoration of the said application on 7-12-1973 and also for restoration of possession of the suit premises and that application is the subject matter of the present petition. The said application is numbered as Miscellaneous Notice No. 1428 of 1973. It appears that in the said application one Oomachen, Advocate, who was looking after the work of Advocate I. P. C. Nair during the period of the suspension of his licence, filed his affidavit dated 3-1-1974. The petitioner had also filed his affidavit. An affidavit in reply was filed on behalf of the plaintiffs-landladies. The trial Court which heard the said Miscellaneous Notice No. 1428 of 1973 dismissed defendant No. 3s application on the ground that defendant No. 3, i.e. the petitioner in this petition, had not shown sufficient cause for his absence on 21-11-1973. The petitioner had also filed his affidavit. An affidavit in reply was filed on behalf of the plaintiffs-landladies. The trial Court which heard the said Miscellaneous Notice No. 1428 of 1973 dismissed defendant No. 3s application on the ground that defendant No. 3, i.e. the petitioner in this petition, had not shown sufficient cause for his absence on 21-11-1973. According to the trial Court, defendant No. 3 must have been present on 13-11-1973 and he must have come to know about the next date of hearing which was 21-11-1973. The trial Court disbelieved the story of defendant No. 3 that he was not informed of the dates of hearing by his Advocate. According to the trial Court there was no affidavit filed by Mr. Nair stating that he had told the defendant No. 3 that his presence was not necessary till he was informed about it. The trial Court further took the view that Mr. Nair who was debarred from practising could not have failed to appraise his client about his inability to attend to his work and introduce him to another Advocate i.e., Advocate Oomachen. According to the trial Court, the defendant No. 3 had full knowledge of all the proceedings and no case was made out by him for restoration of the application to set aside the ex parte decree. The trial Court therefore dismissed the said application by its order dated 25-1-1974. In the revision filed against the said order, the revisional Court took the same view as the trial Court and laid much store by the fact that the defendant No. 3 had not paid the process fee in the application for setting aside the ex parte decree for a long time and also by the fact that although Shri Nair, Advocate was admittedly debarred from practising, he was obviously not debarred from attending his office and in the ordinary course from making arrangements with another Advocate to watch the process of the proceedings in which he was engaged. In short the Revisional Court also refused to believe that defendant No. 3 was ignorant of the date of hearing viz. 21-11-1973 on which date the application was dismissed for default. 5. I find that both the courts below have proceeded firstly, on mere surmises and secondly, on the basis of the absence of an affidavit filed by Advocate Shri Nair. 21-11-1973 on which date the application was dismissed for default. 5. I find that both the courts below have proceeded firstly, on mere surmises and secondly, on the basis of the absence of an affidavit filed by Advocate Shri Nair. In the first instance, beyond the bare word of the plaintiffs that the petitioner was present on 13-11-1973, there is nothing on record to show that the petitioner was in fact present on that date in the Court. On the other hand the record of the case which has been produced in this Court shows that there is an endorsement. On 13-11-1973 which is as follows : "Service waived. Illegible. Advocate for plaintiffs. 13-11-1973". There is no mention that either the Advocate for the petitioner or the petitioner was present in the Court. 6. In addition, we have on record the affidavit of Advocate Oomachen who has started that Advocate Nair having been suspended from practice, had instructed him to appear for the petitioner in the said matter. On 13-11-1973 he had gone to the Court having Mr. Nairs appearance withdrawn and for asking for an adjournment to enable him to meet the defendant No. 3 and take instructions and also authorisation. He reached the Court at about 12 noon on that day. Since he did not know the position of the matter on board, on reaching the Court he made enquiries with the Judicial Clerk and he was told that the lawyer appearing for the other side had asked for times for reply and hence the matter was adjourned for reply to 21-11-1973. In the evening he informed Mr. Nair about the date of hearing but thereafter the petitioner did not contact him and he could not therefore appear on the next date i.e. 21-11-73. In this view of the matter, I find that there is no valid reason why the petitioner should have been disbelieved with regard to his statement that he was not present in the Court on 13-11-73 and an inference that he was present on 13-11-1973 should have been drawn on mere guest-work. In this view of the matter, I find that there is no valid reason why the petitioner should have been disbelieved with regard to his statement that he was not present in the Court on 13-11-73 and an inference that he was present on 13-11-1973 should have been drawn on mere guest-work. The second reason given by both the courts below is that no affidavit of Advocate Nair had been filed stating that Advocate Oomachen had informed him of the progress of the matter on the evening of 13-11-1973 and that he had failed to inform the petitioner about the next date of hearing i.e. 21-11-1973 although he i.e. Nair was so informed. The trial Court has come out with a somewhat strange reasoning to hold that Mr. Nair must have informed the petitioner since according to it, it was highly improbable and unbelievable that Mr. Nair who was debarred from practising and to whom the petitioner had seen after the order against him was passed, would not apprises his client about his meeting to attend to his work and introduce him to the Advocate to whom he had to look after his matters including the matter of the petitioner. I find that the ordinary and natural course of human conduct would prevent any Advocate from informing his client that he was debarred from practising particularly when such bar was to operate not permanently but temporarily for three months and he was again to revert to his practise after the said temporary period of suspension. No Advocate placed in such a predicament would like to parade the said ignominy before his client who in all probability was likely to him in favour of other Advocates . Therefore the probability was that Mr. Nair had never informed the petitioner about his suspension and there appears to be a good deal of truth in the version of the petitioner that Mr. Nair had never given him any such information. It also appears probable in the circumstances, that Mr. Nair wanted to make his own private arrangements for attending to the matter during the period of his suspension without bringing his suspension to the knowledge of his client. The reliance placed by both the Courts further on the absence of an affidavit of Mr. It also appears probable in the circumstances, that Mr. Nair wanted to make his own private arrangements for attending to the matter during the period of his suspension without bringing his suspension to the knowledge of his client. The reliance placed by both the Courts further on the absence of an affidavit of Mr. Nair to state that although he was informed by Advocate Oomachen of the next date of hearing he had not communicated the said date to the petitioner was equally uncalled for. It is not that in every case there is an omission to make an affidavit, it is a wilful or a deliberate omission. Both the courts below therefore were wrong in holding that the omission to make an affidavit was a wilful omission and led to no other conclusion but the one drawn by them viz. that Advocate Nair after getting the intimation from Advocate Oomachen had informed the petitioner about the next date of hearing i.e. 21-11-1973. It was open for either of the courts, before drawing such an inference, to call upon the parties to state as to whether Advocate Nair was prepared to file an affidavit to the effect that he had not so informed the date of the next hearing to the petitioner. If, inspite of that, such an affidavit had not come forward, then the Courts below would certainly have been justified in drawing the inference which they did. In order to satisfy myself on this point I called upon the petitioner to file the affidavit of Advocate Nair and Mr. Nair has filed his affidavit on 27-1-1975 in this petition and he has stated in terms that although Advocate Oomachen had given him information about the proceedings in the suit on 13-11-1973 and asked him to inform the petitioner about adjournment of the matter from 13-11-1973 to 21-11-1973, he did not convey the same to the petitioner nor did the petitioner contact Advocate Oomachen before 21-11-1973. He has explained the reason about his failure to do so by stating that on account of a lot of tension on his mind he had completely forgotten about it. I do not think that in the circumstances, there is any reason to disbelieve this statement of Advocate Nair. He has explained the reason about his failure to do so by stating that on account of a lot of tension on his mind he had completely forgotten about it. I do not think that in the circumstances, there is any reason to disbelieve this statement of Advocate Nair. In the circumstances I hold that there was sufficient reason made out by the petitioner for his absence on 21-11-1973 as well as the absence of anybody to represent him on the said date. 7. I further find that the lower Courts also relied upon still another fact to reject the application of the petitioner and it is the delay in paying the process fee in the application in Miscellaneous Notice No. 1055 of 1973 which was filed for setting aside the ex parte decree. The explanation of the petitioner is that on the very day when this application was made, he had already handed over the money to his Advocate Nair. But it appears that the said advocate had failed to do his duty and in the circumstances of the case which are already on record viz., that of the suspension of the said Advocate from practising. I do not think that this explanation was not a satisfactory explanation. 8. In the circumstances I allow the petition, set aside the impugned order dated 3-10-1974 passed by the Bench of the Small Causes Court in Revision petition No. 52 of 1974 and direct that the application of the petitioner, being Miscellaneous Notice No. 1055 of 1973 be restored to file and be disposed of on merits according to law. 9. As regards the costs of this petition, although the petitioner succeeds in this petition, I find that the default of appearance on 21-11-1973 was on account of the petitioners Advocate appearing in the said notice proceedings and there is no reason why the respondents Nos. 1 and 2 plaintiffs should suffer on account of the said default. The respondents Nos. 1 and 2 plaintiffs will therefore be entitled to costs of this petition and the petitioner will pay the same to them. ------