Shri Ravindra S/O Ramchandra ... vs Smt. Vasanti Wd/O Tulsiram ...
2017 Latest Caselaw 5664 Bom

                                                1

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


                               WRIT PETITION NO.389 OF 2017.


   PETITIONER:                      Ravindra Ramchandra Gujarkar,
                                    aged about 36 years,, Occu: Agriculturist, 
                                    R/o Anjangaon, Tq.Wrora, Distt.Chandrapur.


                                             : VERSUS :


   RESPONDENTS: 1.                  Smt.Vasanti wd/o Tulsiram Gujarkar,
                                    aged about 60 years, Occu: Household, 
                                    R/o Anjangaon, Tq.Warora, Distt.Chandrapur.

                               2.   Ramchandra s/o Laxman Gujarkar,
                                    aged about 70 years, Occu: Cultivation,
                                    R/o Anjangaon, Tq.Warora, Distt.Chandrapur.

   -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   Mr.A.K.Bangadkar, Advocate for the petitioner.
   Mr.S.M.Karkare, Advocate for respondent no.2.
   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                       CORAM:   P.N.DESHMUKH, J.

                                                       DATED:    4th AUGUST, 2017.

   ORAL JUDGMENT:

1. Rule, Rule made returnable forthwith. None for respondent

no.1 though appears to be served. Learned counsel for respondent no.2

makes a statement that he does not want to file affidavit-in-reply. Thus,

by consent of learned counsel of both the sides, heard finally.

2. Challenge in this petition is to impugned order dated 19 th

August, 2015 passed by Ad hoc Additional District Judge, Warora,

whereby application being Misc.Civil Application No.1 of 2011 filed for

restoration of Regular Civil Appeal No.148 of 2007 came to be rejected.

3. The subject-matter of appeal, which came to be dismissed for

default, is in respect of claim of petitioner on the suit property on the

basis of Will-deed of his grand-mother. It is noted that in the Regular

Civil Appeal, which came to be dismissed for default, the challenge was

to the judgment and decree passed in Reg.Civil Suit No.24 of 2001

wherein petitioner was original plaintiff, seeking above stated reliefs of

declaration and ownership based on Will-deed, and appeal was filed as

said suit was dismissed.

4. Having considered the subject-matter, and on perusal of

impugned order by which appeal came to be dismissed for default, it is

found that without considering the subject-matter as aforesaid, appeal

came to be dismissed since the appellant was not present. It is material

to note that though petitioner diligently within 30 days had applied for

restoration of appeal, and found to have mentioned ground of ill-health

of petitioner, without considering the same and by cryptic order said

came to be rejected finding that none was present for the petitioner.

5. In that view of the matter, impugned order dated 19 th

August, 2015, rejecting application for restoration filed by petitioner is

liable to be set aside. In the circumstances, writ petition is allowed.

Impugned order passed in Misc. Civil Application No.1 of 2011 is set

aside. Regular Civil Appeal No.148 of 2007 is restored on the file of Ad

hoc Additional District Judge, Warora for its consideration as per law.

In view of fact of dismissal of appeal as aforesaid on 4 th

December, 2010, learned Appellate Court is directed to expeditiously

decide the same, preferably within six months from receipt of writ of

this Court.

No order as to costs.

JUDGE chute