Bombay High Court
Balaji Shivdas Pawar vs State Of Maharashtra And Others on 19 June, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5595 OF 2015
Balaji s/o Shivdas Pawar PETITIONER
Sole Proprietor of B. S. Pawar
(Engineers & Contractors)
Age - 47 years, Occ - Contractorship
Office and Residence at, 4 Siddhant Arcade
Ganesh Nagar, Old Ausa Road,
Latur, District - Latur
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Secretary,
Public Works Department,
Mantralaya, Mumba - 32
2. The Chief Engineer,
Public Work Region,
Bandhakam Bhavan,
Adalat Road, Aurangabad
3. The Superintending Engineer,
Public Works Circle,
Bandhkam Bhavan,
Osmanabad, District - Osmanabad
4. The Executive Engineer,
Construction Division,
P. W. D. Campus, Osmanabad
District - Osmanabad
.......
Mr. J. N. Singh, Advocate for the petitioner
Mr. S. N. Kendre, AGP for respondent - State
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 19th JUNE, 2017
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the parties finally by consent.
2. Petitioner is plaintiff in Regular Civil Suit No.15 of 2013
instituted for recovery of amount. While upon service of
summons, respondents did not appear, the matter proceeded
further with an order "matter to proceed without written
statement against defendants" around 2013.
3. Petitioner, on 14th December, 2013 lodged examination in
chief on affidavit. On 1st January, 2014, notice was given to
defendants for production of documents and even the court
issued notice to defendant No. 4 to produce documents as
demanded by the plaintiff. Accordingly, defendants had
produced certain documents on 15 th January, 2014. Matter was
posted for evidence on 14th February, 2014 and thereafter on
24th February, 2014 and 6th March, 2014. While on 15th March,
2014 an application to set aside no written statement order
came to be filed on behalf of the defendants, court has framed
issues under Exhibit-27 and matter was kept for list of
witnesses. However, despite examination in chief on affidavit
being on record, court had directed on 21 st March, 2014 to close
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plaintiff's evidence. On 3rd April, 2014, it was posted for
dismissal of suit in default. On 7 th April, 2014, the suit came to
be dismissed in default. This was not noticed by the plaintiff for
quite a while, as there had been neither communication to that
effect nor any intimation was given by concerned advocate who
prosecuted the matter. In the circumstances, while the petitioner
realized that suit stood dismissed in default under order dated 7 th
April, 2014, immediately, an application had been moved for
setting aside dismissal in default order referring to aforesaid
reasons under MARJE No. 209 of 2014. Said application came to
be rejected and thus this writ petition.
4. Learned AGP appearing on behalf of the respondents
submits that advocate for the plaintiff had been absent from 30 th
January, 2014 to 3rd April, 2014 as well as plaintiff had not been
present and therefore, court had rightly rejected the application.
5. Perusal of the order impugned shows that although
narration of the reasons given in the application has been
referred to in the order, while deciding the application on merits,
there is no reference to that the advocate had not given
intimation about dismissal in default order and the court has
observed that there is no reason given in affidavit filed for delay
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condonation application.
6. Learned advocate for the petitioner purports to contend
that very application has been given on affidavit under evidence.
In the circumstances, keeping in view the 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" while delay cannot be
said to be deliberate and particularly having regard to the nature
of suit and proximity of dates in the suit, impugned order dated
3rd February, 2015 on MARJE No.209 of 2014 passed by 2 nd Joint
Civil Judge, Senior Division, Osmanabad stands set aside. MARJE
No.209 of 2014 stands granted. Matter to proceed accordingly.
7. Writ petition as such, stands allowed. Rule is made
absolute in aforesaid terms with no order as to costs.
[SUNIL P. DESHMUKH, J.]
drp/wp5595-15
