Bombay High Court
Nirabai @ Mirabai W/O Bharatlal ... vs Premlal S/O Chintaman Machhirake ... on 7 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.3271 OF 2013
PETITIONERS: 1. Nirabai @ Mirabai W/o Bharatlal
Machhirke, Aged about 47 yrs., Occ:
Cultivator,
2. Bharatlal Cintaman Machhirke,
Aged about 48 yrs., Occ: Cultivator,
Both R/o Latori, Tq. Salekasa, Distt.
Gondia.
-VERSUS-
RESPONDENTS: ig 1. Premlal S/o Chintaman Machhirake,
Aged about 37 years, Occ-Cultivator,
2. Deolal S/o Chintaman Machhirake,
through Lrs:
2(A) Anilkumar S/o Deolal Machhirake,
Aged about 21 years, Occup:
Cultivator,
2(B) Ku. Swati d/o Deolal Machhirke,
Aged about 19 years, occup: Nil,
Both r/o Latori, Tah. Salekasa, Distt.
Gondia.
3. Saraswatabai W/o Premlal
Machhirake, Aged about 34 years,
Occu-Cultivator,
4. Rajwantabai W/o Deolal Machhirake,
Aged about 29 years, Occ-Cultivator,
All R/o Latori, Tq. Salekasa, Distt.
Gondia.
Shri D. A. Sonwane, Advocate for the petitioners.
None for respondents.
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CORAM: A.S. CHANDURKAR, J.
DATED: 07
th JUNE, 2016.
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ORAL JUDGMENT :
1. In view of notice for final disposal issued on
2-12-2013, the learned Counsel for the petitioners has been heard
at length.
2. None appears for the respondents though called twice.
3. The petitioners who are the original plaintiffs are
aggrieved by the order dated 23-4-2012 passed by the trial Court
refusing to condone the delay in filing the application for
restoration of the civil suit that was dismissed in default.
4. The petitioners had filed Regular Civil Suit
No.28/2001 seeking possession of the suit property. On 13-7-2005
when the suit was fixed for the evidence of the plaintiff, he
remained absent and as a result thereof, the suit was dismissed for
want of prosecution. On 18-11-2005, an application for restoration
of the suit along with an application for condonation of delay came
to be filed. The plaintiff No.2 led his evidence in support of the
applications. The trial Court by the impugned order rejected both
the applications.
5. Shri D. A. Sonwane, learned Counsel for the
petitioners submitted that the medical certificate dated 18-11-2005
indicating illness of the plaintiff No.2 who was the husband of the
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plaintiff No.1 was filed on record. He submitted that it was his
specific case that the plaintiffs had informed their Counsel about
the illness of the plaintiff No.2, but the Counsel did not appear on
said date. He submitted that the petitioners being the plaintiffs,
there was no reason whatsoever to cause unnecessary delay in
filing the restoration application. He, therefore, submitted that the
delay deserves to be condoned and the proceedings deserve to be
restored on file.
ig There is no appearance on behalf of the respondents.
The record indicates that the respondents had filed reply to the
aforesaid applications and had opposed the same. It was stated
that no sufficient cause was stated in the applications. However,
no evidence was led on their behalf.
7. Perusal of the record indicates that on 13-7-2005 when
the case was fixed for recording evidence of the plaintiffs, they
remained absent. The reason for absence has been mentioned by
the plaintiff No.2 stating that he was undergoing treatment. A
medical certificate dated 18-11-2005 was also placed on record.
Though in the application specific details about the illness were
not mentioned, the certificate at record page 15 discloses the
nature of ailment as well as the name of the doctor who was
treating the petitioner No.2. Considering the fact that the suit is
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for possession and the delay as occasioned is not deliberate, the
trial Court ought to have accepted the reasons furnished by the
plaintiffs and ought to have restored the suit. At the most, the trial
Court could have imposed costs on the plaintiffs so as to
compensate the respondents.
8. Thus, taking an overall view of the matter, the trial
Court appears to have refused to condone the delay without
properly exercising the discretion in that regard. The plaintiffs
deserve an opportunity to contest the same on merits.
9. Accordingly, the following order is passed:
(1) The order dated 23-4-2012 passed by the trial Court is
quashed and set aside. The applications below Exhibits 1 & 2
stand allowed subject to costs of Rs.2000/- to be paid by the
petitioners to the respondents in the trial Court within a period of
six weeks from today. On such costs being paid, the trial Court
shall proceed with the adjudication of Regular Civil Suit
No.58/2005 on merits.
(2) Rule is made absolute in aforesaid terms. No costs.
(3) The fees of the learned Counsel appointed for the
petitioners is quantified at Rs.1500/-.
JUDGE
//MULEY//
