Bombay High Court
Rajshekhar Bhagwat Chaudhari And ... vs Smt. Pramila Pralhad Chaudhari ... on 13 October, 2016
Bench: P.R. Bora
1 AO 38/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.38 OF 2016
1. Rajshekhar Bhagwat Chaudhari,
Age:64 years, Occu.:Business,
R/o. 270, Navi Peth, Khiroda Bhawan,
Jalgaon, Tq.& Dist. Jalgaon,
2. Sunil Bhagwat Chaudhari,
Age:54 years, Occu.:Business,
R/o.270, Navi Peth, Khiroda Bhawan,
Jalgaon, Tq. & Dist. Jalgaon.
ig ...APPELLANTS
(Orig.Applicants/Deft.
Nos.2 & 3)
VERSUS
1. Smt. Pramila Pralhad Chaudhari,
Deceased
2. Kalpana Pralhad Chaudhari,
Age:44 years, Occu.:Household,
R/o. Khiroda, Taluka-Raver,
Dist. Jalgaon,
3. Nitin Pralhad Chaudhari,
Age:46 years, Occu.:Agriculture,
R/o. Khiroda, Taluka-Raver,
Dist. Jalgaon,
4. Jayshree Girdhar Patil,
Age:51 years, Occu.: Household,
R/o. 12, Subhashwadi, Ringroad,
Jalgaon, Taluka & District Jalgaon,
5. Aruna Krushna Patil,
Age:47 years, Occu.:Household,
R/o.C/o. Dr. K.D. Patil,
Shahunagar, Jalgaon,
Taluka & District Jalgaon,
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2 AO 38/2016
6. Sanjay Pralhad Chaudhari,
Age:49 years, Occu.: Medical
Practitioner,
R/o. 6, Ganesh Colony, Jalgaon,
Taluka & District Jalgaon.
...RESPONDENTS
(Orig. Respondents/ Orig.
Plaintiffs)
...
Mr. G.S. Rane, Advocate for Appellants.
Mr. G.V. Wani, Advocate for Resp.Nos.2 to 6.
ig -----
CORAM : P.R.BORA, J.
DATE :
13 th
October,2016.
ORAL JUDGMENT:
1) Heard. Admit. By consent of the learned
Counsel appearing for the parties, taken up for
final disposal.
2) The appellants have filed the present
appeal challenging the order passed by Principal
District Judge, Jalgaon in Civil Misc.
Application No.40/2015 on 6th April, 2016. The
aforesaid application was filed by the
appellants, seeking restoration of Regular Civil
3 AO 38/2016
Appeal No. 296/2006, which was dismissed for want
of prosecution, vide order passed on 13th
February, 2015.
3) Shri Rane, learned Counsel appearing for
the appellants submitted that in Regular Civil
Appeal No. 296/2006, an application was preferred
by the appellants, seeking permission to lead the
additional evidence. The learned counsel further
submitted that since the said application was
rejected by learned District Judge, the
appellants have preferred Writ Petition No.
9719/2014 before this Court, challenging the said
order. The learned counsel further submitted that
the appellants had been, therefore, requesting
the learned Principal District Judge to adjourn
the hearing of the Regular civil Appeal till
decision of the aforesaid writ petition. The
learned Counsel submitted that though in the writ
petition filed by the appellants, no express stay
was granted by this Court to the proceedings
before the court below, in the order passed by
4 AO 38/2016
this Court (Coram: Ravindra V.Ghuge,J.) on
18.11.2014, liberty was granted to the present
appellants to request the first appellate court
to adjourn the proceedings till the next date of
hearing in the writ petition. The learned
Counsel further submitted that for certain
genuine reasons, the respondents in the writ
petition could not be served within time and
consequently, the writ petition could not be
heard by this Court. The learned Counsel
submitted that though all these facts were
brought to the notice of the court below, the
same were not properly considered by it and vide
order passed on 13.2.2015, the appeal filed by
the appellants was dismissed for want of
prosecution.
. The learned counsel submitted that in
the Misc. Civil Application also all the
aforesaid facts were brought to the notice of the
court and a request was made for setting aside
the order, whereby the appeal was dismissed for
want of prosecution. The learned Principal
5 AO 38/2016
District Judge, however without considering the
merit in the submissions made on behalf of the
appellants, rejected the said application also.
The learned Counsel in the aforesaid
circumstances prayed for setting aside the
impugned orders and consequently prayed for
restoration of Regular Civil Appeal No.296/2006
pending on the file of the Principal District
Judge.
4) Shri Wani, learned Counsel appearing for
the respondents, resisted the submissions made on
behalf of the appellants. The learned Counsel
submitted that the Court below has rightly
rejected the application seeking restoration of
the appeal and no interference is required in the
impugned orders.
. The learned Counsel further submitted
that the Regular Civil Appeal filed by the
present appellants has also been rightly
dismissed by the learned Principal District
Judge, vide order passed on 13th February, 2015,
6 AO 38/2016
observing that despite ample opportunities given
to the appellants, they did not proceed with
hearing of the appeal. The learned Counsel,
therefore, prayed for dismissal of the present
appeal.
5) I have carefully considered the
submissions made on behalf of the learned Counsel
appearing for the parties. I have also perused
the impugned orders. It is true that mere
pendency of the writ petition before the High
Court could not have been a ground for not
proceeding with the appeal before the court below
when no stay is granted by the High Court in the
writ petition. The impugned orders further
reveal that reasonable opportunities were granted
by the first appellate court to the appellants on
the ground that the writ petition filed by them
is pending before the High Court. Considered the
matter on such facts there seems no case for the
appellants. However, the fact remains that
ultimately, the Regular Civil Appeal is dismissed
7 AO 38/2016
by the court below for want of prosecution. In
other words, the Regular Civil Appeal has not
been decided on merits. It appears to me that
the appellants need to be given an opportunity
to contest the appeal filed by them on merits.
Of course, they cannot be permitted to henceforth
seek any adjournment before the court below on
the ground that the writ petition is pending
before the High court.
6) In the result, the following order,
ORDER
i) The impugned order dated 6th April, 2016 is
quashed and set aside and the Civil Misc.
Application No.40/2015 is allowed.
Consequently, Regular Civil Appeal No.
296/2006 stands restored to its original
file;
ii) The appellants shall proceed with the
appeal without asking for any adjournment,
more particularly, on the ground that Writ
Petition No.9719/2014 filed by them is
pending before the High court;
8 AO 38/2016
iii) Parties shall appear before the first
appellate court on 15th November, 2016;
iv) The first appellate court shall decide the
Regular Civil Appeal on its own merits;
v)The Appeal from Order stands disposed of in
the aforesaid terms. Pending civil
application, if any, stands disposed of.
(P.R.BORA)
JUDGE
bdv/
