Shri Bhojraj Kunjilal Farkunde vs Hansraj Bhaiyyalal Farkunde And ...
2016 Latest Caselaw 2556 Bom

     Judgment                                              1                                wp5577.14.odt




                                                                                       
                      
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   NAGPUR BENCH, NAGPUR.




                                                               
                                WRIT PETITION NO. 5577 OF 2014 




                                                              
     Shri Bhojraj Kunjilal Farkunde,
     aged about 58 years, Occu.: Cultivator,
     R/o. Pauldawna, Tah. Salekasa,




                                                
     District : Gondia. 
                                ig                                             ....  PETITIONER.

                                            //  VERSUS //
                              
     1) Hansraj Bhaiyyalal Farkunde,
        aged about 57 years, Occu.: Cultivator,
        R/o. Pauldawna, Tah. Salekasa, 
        District : Gondia.
      


     2) Kishor Mohanlal Farkunde,
   



        R/o. Subhash Ward No.17, in front of 
        Dr. Tare, Darekasa Road, At Post.
        Dongargadh, Tahsil : dongargadh,
        Distt. Rajnandgaon (Chhattisgarh).





                                                        .... RESPONDENT
                                                                         . 
      ___________________________________________________________________
     Shri A.Z.Jibhkate, Advocate for the Petitioner.
     None for the Respondent. 
     ___________________________________________________________________





                                  CORAM : Z.A.HAQ, J.

DATED : JUNE 06, 2016.

ORAL JUDGMENT :

Heard learned advocates for the respective parties.

2. RULE. Rule returnable forthwith.

Judgment 2 wp5577.14.odt

3. The petitioner filed civil suit praying for decree for specific

performance of contract dated 2nd November, 1993. The petitioner also

prayed for decree for permanent injunction restraining the defendants from

obstructing the peaceful possession of the plaintiff over the suit field.

4. The civil suit was dismissed in default. The petitioner filed an

application praying that the civil suit be restored. This application was

rejected. The petitioner challenged the order before the District Court in

appeal, which is dismissed. The petitioner has challenged the above orders

in this petition.

5. With the assistance of the learned advocate for the petitioner, I

have examined the documents placed on record of the petition. It is

undisputed that the petitioner had earlier sought adjournment by

applications Exhs. 72, 73, 74, 75, 76, 77, 78, 79 and 80. According to the

petitioner, on 15th September, 2006 on which date the civil suit is dismissed

for want of prosecution, the advocate representing the petitioner/ plaintiff

was ill and therefore, the matter was not attended. Shri Jibhkate, learned

advocate for the petitioner has submitted that the subordinate Courts have

committed an error in upholding the order of dismissal of the civil suit for

want of prosecution, relying on the earlier conduct of the petitioner/

plaintiff. It is submitted that the earlier conduct is not relevant and the

subordinate Courts should have considered the circumstances because of

which the matter was not attended on the date on which it was dismissed for

Judgment 3 wp5577.14.odt

want of prosecution. To support the submission reliance is placed on the

judgment given in the case of M/s. Penthouse Building Vs. Veleriano Leo de

Souza, reported in 2006(4) ALL MR 337. It is further submitted that the

application for restoration of the civil suit was filed on the same day i.e. on

15th September, 2006.

6. I find that the impugned orders are not passed only on the basis

of the earlier conduct of the petitioner/ plaintiff and therefore, the judgment

relied upon by the learned advocate for the petitioner does not assist the

petitioner. Filing of the application on 15th September, 2006 on behalf of

the petitioner/ plaintiff after the dismissal of the civil suit itself shows that

there had been no bonafides on the part of the petitioner / plaintiff in

prosecuting the civil suit as it goes unexplained as to why the plaintiff who

claims to have been present in the Court on the relevant date had not

responded to the calls made at 11.30 a.m., 12.00 noon, 12.30 p.m.

Considering the facts of the case and the documents on record,

I do not find any patent illegality or perversity in the impugned order which

necessitates interference by this Court in the extraordinary jurisdiction.

The petition is dismissed. In the circumstances, the parties to

bear their own costs.

JUDGE RRaut..