Bombay High Court
Digambar Jaywantrao Deshmukh vs Narmadabai Fakirrao Gadhave And ... on 13 June, 2017
Bench: S.P. Deshmukh
3774.2015WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3774 OF 2015
Digambar s/o Jaywantrao Deshmukh
Age : 62 years, Occ. Agriculture,
R/o Shivaji Nagar, Post Sinnar,
Tq. Sinnar, Dist. Nashik ...Petitioner
Versus
1. Narmadabai Fakirrao Gadhave
Age : 67 years, Occ. Agriculture,
R/o. Soygaon, Post Jawalke,
Tq. Kopargaon, Dist. Ahmednagar.
2. Smt. Sitabai Ram Gadhave (now deceased),
Through L.Rs.-
2-A. Kailas Bhanudas Sadaphal,
Age : 58 years, Occ. Agriculture,
R/o. Shahpur, Post Jawalke, Tq. Kopargaon,
Dist. Ahmednagar.
2-B. Surekha Vijay Khairnar,
Age : 55 years, Occu. Agriculture,
R/o Chas (Kasarwadi)
Post Nandur Shingote, Tq. Sinnar,
Dist. Nashik. ...Respondents
...
Mr. Shivaji T. Shelke, Advocate for petitioner
Mr. L. K. Pradhan, Advocate for respondent no. 1
...
3774.2015WP.odt
[CORAM: SUNIL P. DESHMUKH, J.]
Date: 13th June, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard
finally with consent of advocates for appearing parties.
2. Petitioner is before this court aggrieved by orders
dated 21st February, 2015 on exhibit-78, 3rd March, 2015 on
exhibit-80 and 11th March, 2015 on exhibit-82 whereunder
the request of petitioner to extend the date for compliance
of direction under order dated 6th February, 2015 came to
be rejected. Under order dated 6th February, 2015 on
exhibit-75 filed by defendant no. 3 for setting aside ex-
parte order dated 1st December, 2014, having regard to
certain antecedents, petitioner-defendant no. 3 had been
directed to deposit a sum of Rs.3,500/- and the application
was allowed. It has been further observed that failure to
deposit costs of Rs.3,500/- would result in rejection of
application. Upon depositing the costs, it had been directed
to take on record written statement of defendant no. 3 by
setting aside ex-parte order.
3. It appears that, on the next scheduled date i.e. on
3774.2015WP.odt
21st February, 2015, defendant filed application under the
signature of the advocate stating therein that defendant no.
3 has gone to Mumbai and had not returned, and the
advocate, on account of marriage ceremony of relative was
out of station, as such, request was made to defer the date
for payment of amount of costs.
4. Application exhibit-78, came to be rejected by trial
court observing that order dated 6th February,2015 allowing
Exhibit-75 on costs is clear and speaking and no reason
would be said to be made out to grant time.
5. On 3rd March, 2015, application exhibit-80 came to be
filed by petitioner-defendant no. 3 requesting to accept
amount of costs, which had been rejected. Thereafter,
exhibit-82 an application giving reasons had been moved to
consider the request of petitioner to set aside ex-parte
order on exhibit-75 and accept written statement. Said
application came to be rejected by the court on 11th March,
2015 observing that already thrice applications were
rejected and no reason had been given to file present
application. It had been further observed that defendant
no. 3 is trying to prolong the proceedings for one or other
reason.
3774.2015WP.odt
6. Having regard to proximity of dates during which
applications had been filed and further to that writ petition
has been pending in this court since 2015, in order to have
decision on merits rather than getting obfuscated by other
aspects, it would be expedient that writ petition be allowed
subject to deposit further sum of Rs.5,000/- (five thousand)
by way of costs in addition to one as had been directed
under order dated 6th February, 2015 by learned joint civil
judge, junior division, Kopargaon.
7. In view of aforesaid, writ petition is allowed in terms
of prayer clause (B) subject to payment of costs of Rs.
5,000/- in addition to the amount of costs of Rs.3,500/-
directed under order dated 6th February, 2015 by joint civil
judge, junior division, Kopargaon. Amount of costs be
deposited before trial court within a period of four weeks
from the date of receipt of writ of this order. Rule is made
absolute, accordingly writ petition stands disposed of.
[SUNIL P. DESHMUKH, J.]
vdk
