Bombay High Court
State Of Maharashtra Through ... vs Ramesh S/O Sallu Uppalwar And ... on 13 April, 2016
Bench: Ravi K. Deshpande
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ao97.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Appeal against Order No.97 of 2015
1. State of Maharashtra,
through Collector,
Chandrapur,
District Chandrapur.
2. Dairy Manager,
Government Milk Scheme Supply
Scheme, Near Railway Station,
Chandrapur, Tahsil and
District Chandrapur.
3. Regional Dairy Development
Officer,
Lal Bungalow, Near G.P.O.,
Civil Lines, Nagpur,
Tahsil and District Nagpur. ... Appellants/
Ori. Appellants
Versus
1. Ramesh s/o Sailu Uppalwar,
Aged about 30 years,
Occupation - Transport
Business,
R/o At Made Tukum,
Post Bothali, Tahsil and
District Gadchiroli. ... Ori. Plaintiff
2. Suresh s/o Narayan Godshelwar,
Aged about 30 years,
Occupation - Nil,
R/o Mokhada,
Tahsil Saoli,
District Chandrapur. ... Ori. Deft. No.4
... Respondents
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ao97.15.odt
Shri A.M. Deshpande, AGP for Appellants.
Ms Kirti Satpute, Advocate for Respondent No.1.
None for Respondent No.2, though served.
Coram : R.K. Deshpande, J.
Dated : 13 April, 2016
th
Oral Judgment :
1.
Admit. Ms Satpute, the learned counsel, waives service of
notice for the respondent No.1. Heard finally by consent of the
learned counsels appearing for the parties.
2. On 22-11-2014, the lower Appellate Court dismissed Regular
Civil Appeal No.149 of 2005 for want of prosecution, as the counsel
appearing for the appellants remained absent on that date, and even
on prior occasions, it is noted that the counsel was absent. Misc. Civil
Application No.120 of 2014 was moved under Order XLI, Rule 19 of
the Code of Civil Procedure for re-admission of the matter. This has
been dismissed by the lower Appellate Court on 6-8-2015. The
reasons are recorded in paras 13 and 14 of the judgment. The Court
appears to have taken into consideration the conduct of the parties
ao97.15.odt
and failure in attending the matter despite several chances.
3. The appeal was pending since 2005. Shri A.M. Deshpande,
the learned Assistant Government Pleader appearing for the
appellants, submits that the factual aspects observed in the judgment
of the lower Appellate Court are not correct. He further submits that
on several occasions, the matter was adjourned on the ground that the
Presiding Officer was not available. As against this, Ms Satpute, the
learned counsel appearing for the respondent No.1/original plaintiff,
submits that it is the case of serious lapse on the part of the counsel in
the matter and the lower Appellate Court was right in rejecting the
application under Order XLI, Rule 19 of the Code of Civil Procedure.
She further submits that there is already a decree passed by Trial
Court for an amount of Rs.48,507.20 along with interest at the rate of
9% per annum from the date of filing of the suit till its realization.
She submits that in order to wrongfully deprive the plaintiff of the
decretal amount, the tactics have been adopted to prolong the matter.
4. It is not in dispute that pursuant to the order
dated 18-1-2016, the appellants have deposited the entire decretal
amount of Rs.1,30,325/- in this Court on 29-1-2016. Without going
ao97.15.odt
into the aspects as to whether the Presiding Officer was absent or
whether there was a serious lapse on the part of the appellants in
attending the matter, the appeal can be restored subject to payment of
costs and no prejudice shall be caused to the respondent
No.1/plaintiff.
5. In view of above, the appeal is allowed. The orders
dated 22-11-2014 passed below Exhibit 1 in Regular Civil Appeal
No.149 of 2005, and the judgment dated 6-8-2015 passed in Misc.
Civil Application No.120 of 2014 by the lower Appellate Court, are
hereby quashed and set aside. The matter is remitted back to the
lower Appellate Court to decide Regular Civil Appeal No.149 of 2005.
The appellants to pay the costs of Rs.2,000/- to the respondent
No.1/plaintiff within a period of eight weeks from the date of first
appearance of the parties before the lower Appellate Court. Any
further adjournment at the instance of the appellants shall entail the
payment of costs of Rs.2,000/- on each such occasion. The decretal
amount of Rs.1,30,325/- deposited by the appellants in this Court be
remitted back to the lower Appellate Court, which shall permit the
respondent No.1/plaintiff to withdraw it upon furnishing the solvent
security to the satisfaction of the lower Appellate Court. The parties to
ao97.15.odt
appear before the lower Appellate Court on 13-6-2016.
6. The appeal is disposed of in the aforesaid terms only.
JUDGE.
Lanjewar
