Bombay High Court
Lotan Dagadu Badgujar And Anr vs Ranjana Dattatraya Badgujar And ... on 28 June, 2017
Bench: P.R. Bora
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.4284 OF 2016
1) Shri Lotan Dagadu Badgujar
Age: 60 years, Occu.: Agriculture,
2) Sau Jijabai Lotan Badgujar
Age: 53 years, Occu.: Household
Both residents of at Post Kapadane,
Taluka and District Dhule
= APPELLANTS
(Org. Opponents)
VERSUS
1) Sau Ranjana Dattatraya Badgujar
Age: 48 years, Occu.: Agri
and Household
2) Miss Saloni Yogesh Badgujar
Age: 7 years, Occu.: Nil,
3) Master Pratik Yogesh Badgujar
Age: 4 years, Occu.: Nil
All residents of At village Undirkhede,
Taluka Parola, District Jalgaon
= RESPONDENTS
(Org. Applicants)
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Mr. Mukul S.Kulkarni, Advocate for Appellants;
Mr. P.B. Patil, Advocate for Respondents.
-----
CORAM : P.R.BORA, J.
DATE :
28 th
June,2017.
ORAL JUDGMENT :
1) Heard finally with consent of the
learned Counsel appearing for the parties.
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2) The appellants have challenged the order
passed by District Judge-1, Amalner on 11th
September, 2015 in Civil Misc. Application No.
20/2014. Vide the said order, the petition filed
by the present respondents has been allowed and
respondent No.1 has been appointed as Guardian of
minor children of deceased Yogesh and Ashwini
Badgujar.
3) The learned Counsel for the appellants
submitted that the impugned order has been passed
without giving any opportunity of hearing to the
present appellants and is as much as an ex parte
order. The learned Counsel submitted that no
notice or summons of the aforesaid application
was served upon the appellants. The learned
Counsel further submitted that at the relevant
time, the appellants were under-trial prisoners
in District Prison, Dhule. The learned Counsel
invited my attention to the bailiff report, which
is at page 19 of the paper book. The learned
Counsel submitted that though the bailiff has
reported that present appellant No.1 refused to
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accept the summons, in fact, no such notice has
been ever served or attempted to be served on
appellant No.1. The learned Counsel submitted
that thereafter public notice was also issued and
it has been held by the court below that the
appellants were duly served and did not appear in
the matter. The learned Counsel submitted that
since the appellants did not get any opportunity
to contest the matter, the mater be remitted back
to the court below for deciding it afresh by
giving due opportunity to the appellants to put
forth their case.
4) Shri Patil, learned Counsel appearing
for the respondents, resisted the contentions
raised on behalf of the appellants. The learned
Counsel submitted that the bailiff report is
quite clear that the appellants have refused to
accept the notice and in such circumstances, no
fault can be found with the observations made by
the court below that despite due notice the
appellants did not appear in the matter and did
not contest the said matter. The learned
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Counsel, therefore, prayed for dismissal of the
appeal.
5) I have carefully perused the record. I
have also perused the report of bailiff, which is
at page 19 of the paper book. The report so
submitted apparently appears to be unsustainable
in view of the fact that when the appellants were
in jail at the relevant time, an endorsement must
have been on the said report by the jail
authorities. In absence of any such endorsement
on the said report, the said report apparently
cannot be accepted. The fact that the appellants
were in jail at the relevant time has not been
disputed by the respondents. It is thus evident
that when the appellants were in jail, the matter
was taken for hearing and without giving any
opportunity to the appellants, the same has been
finally decided.
6) In view of the above, appropriate course
will be to set aside the order passed by the
District Judge and to remit back the matter for
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deciding it afresh on its own merits by the said
Court by giving due opportunity to the parties to
the said proceedings. Hence, the following
order, -
ORDER
i) The order passed by District Judge-1,
Amalner on 11th September, 2015 in Civil
Misc. Application No.20/2014 is quashed
and set aside and the matter is remitted
back to the trial court for deciding it
afresh on its own merits by giving due
opportunities to the parties to the said
proceeding;
ii) The parties to appear before the court
below on 10th July, 2017;
iii) The First Appeal stands allowed in the
aforesaid terms.
iv) The record and proceedings be forthwith
sent back to the trial court.
(P.R.BORA)
JUDGE
bdv/
