Pandurang Balu Rathod And Others vs Dattrao Namdevrao Rakhunde
2017 Latest Caselaw 3119 Bom

                                      {1}                             wp701-17

 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                      WRIT PETITION NO.701 OF 2017

 1.       Pandurang s/o Balu Rathod                          PETITIONERS
          Age - 55 years, Occ - Labour
          R/o Salvai Khurd Tanda,
          Taluka - Aundha (Nagnath)
          District - Hingoli

 2.       Poonam s/o Bhujang Rathod
          Age - 4 years, Occ - Nil
          R/o as above

 3.       Pawan s/o Bhujang Rathod,
          Age - 3 years, Occ - Nil
          R/o As above

          (Petitioners No.2 and 3 are minors though
          their natural guardian, grandfather petitioner No.1)

          VERSUS

 Dattrao s/o Namdevrao Rakhunde                             RESPONDENT
 Age - 62 years, Occ - Agriculture
 R/o Jawalabazar, Taluka - Aundha (Nagnath)
 District - Hingoli

                              .......

Mr. Shivprasad G. Jadhavar, Advocate for the petitioners Mr. Sudhir K. Chavan, Advocate for the respondent .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 13th JUNE, 2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with

consent of learned advocates for the parties.

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2. Leave to amend prayer clause. Amendment be carried out

forthwith.

3. Writ petition has been moved against order dated 6 th

October, 2016, whereunder Civil Miscellaneous Application No.83

of 2016 seeking condonation of delay for filing application for

restoration of first appeal No. 2 of 2014 has been rejected.

4. After hearing learned advocates, it emerges that

proceedings pending before Commissioner for Workmen's

Compensation were dismissed in default for appearance of

present petitioners for cross examination. An application came to

be moved for restoration belatedly and for condonation of delay

aforesaid Civil Miscellaneous Application No. 83 of 2016 had

been moved explaining that petitioner No.1 is an age old person

and petitioners No. 2 and 3 are minor children of the deceased

workman and that since health condition of petitioner No.1 being

not sound, the prosecuting advocate could not be contacted and

consulted in the interregnum. It has further been referred to that

there was no intention in not being before court for cross

examination. It is in the circumstances, delay of eleven months

and some odd days has been caused.

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5. On the other hand, there had been contention that

proceedings are being protracted deliberately after petitioner No.

1 had filed affidavit of examination in chief and had been

remaining absent to face cross examination and under the

circumstances there had been no alternative but to dismiss the

proceedings in default. Medical certificate indicating illness of

petitioner No. 1 is not such which would require petitioner No. 1

to be hospitalized or an indoor patient. There is sheer negligence

on the part of petitioners in prosecuting the matter.

6. Learned judge, it appears, has considered that medical

certificate for the period during 18th March, 2015 to 23rd

February, 2016 is in respect of heart disease and hyper tension

and except certificate no other document has been placed on

record, which according to learned judge shows that on 18 th

March, 2015 petitioner No. 1 had not been an indoor patient and

that the petitioner had been taking follow up treatment.

According to learned judge the certificate produced does not

show that petitioner No. 1 had been indoor patient and had been

unable to move. Learned judge has further considered that it is

not the case of the petitioners that they were not aware of the

dismissal order as referred to in the decision cited on behalf of

the petitioners before the lower court.

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7. Learned advocate for the petitioners, on instructions,

submits that the petitioners would waive interest for the period

from 18th March, 2015 to the date of application i.e. 25 th

February, 2016 in case their claim is granted by the

Commissioner Workmen's Compensation.

8. Having regard to the circumstances that it is workmen's

compensation claim made by petitioners about death of son and

father and looking at their ages, a pedantic approach in the

matter would be required to be eschewed. While the medical

certificate refers to heart disease and hyper tension, the

interpretation placed on the same appears to be rather technical

and cursory. While considering delay condonation applications,

guidelines appearing under the judgments of the Supreme Court

particularly those in the case of "Collector, Land Acquisition, Anantnag

V/s. Ms. Katiji and others" reported in AIR 1987 SC 1353, and in the case

of "Esha Bhattacharjee V/s. Managing Committee of Raghunathpur Nafar

Academy and others reported in (2013) 12 Supreme Court Cases 649" may

have to be taken into account. It does not appear to be a case

that any particular benefit can be said to have been derived by

causing delay in making application for restoration. In the larger

interest of justice, it would be expedient to allow the writ

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petition.

8. As such, writ petition stands allowed. Impugned order

dated 6th October, 2016 passed by Civil Judge, Senior Division,

Basmatnagar in Civil Miscellaneous Application No. 83 of 2016

stands set aside. Miscellaneous Civil Application No. 83 of 2016

stands granted. Rule is made absolute in aforesaid terms.

9. The proceedings be prosecuted expeditiously and be

disposed of as early as possible.

[SUNIL P. DESHMUKH, J.]

drp/wp701-17