Haribhau Narayanrao Nandkhedkar ... vs Sandeep Balasaheb Walke And ...
2021 Latest Caselaw 247 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                           WRIT PETITION NO.4085 OF 2019


Haribhau s/o Narayanrao Nandkhedkar
Died - through His L.Rs.

1.     Suvarna w/o Haribhau Nandkhedkar,
       Age : 58 years, Occu. Household,
       R/o Ramkrishna Nagar,
       Near Vasantrao Naik Statue,
       Wasmath Road, Parbhani,
       Tq. and District Parbhani

2.     Vaibhav s/o Haribhau Nandkhedkar,
       Age : 37 years, Occu. Business,
       R/o Ramkrishna Nagar,
       Near Vasantrao Naik Statue,
       Wasmath Road, Parbhani,
       Tq. and District Parbhani

3.     Sou. Supriya w/o Sujit Kumbhar,
       Age : 32 years, Occu. Household,
       R/o Beside Shahnoormiya Dargah,                      PETITIONERS
       Aurangabad, District Aurangabad                    (Orig. Defendant
                                                           Nos.1/1 to 1/4
       (Petitioner Nos.1 and 3 through
       GPA Holder of Petitioner No.2)

       VERSUS

1.     Sandeep s/o Balasaheb Wakle,
       Age : 30 years, Occu. Agri.,
       R/o Godawari Colony, Gangakhed,
       Tq. Gangakhed, Dist. Parbhani

2.     Vivek s/o Devikantrao Deshmukh,
       Age : 38 years, Occu. Architect,
       R/o Lokmanya Nagar, Parbhani,
       Tq. and District Parbhani




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                                            2                               WP4085-2019

3.     Vishal s/o Manoharrao Budhwant,
       Age : 40 years, Occu. Contractor,
       R/o Shivram Nagar, Parbhani,
       Tq. and District Parbhani

4.     Vijaya d/o Haribhau Nandkhedkar,
       Age : 27 years, Occu. Education,
       R/o Ramkrishna Nagar,
       Near Vasantrao Naik Statue,
       Wasmath Road, Parbhani,                                 RESPONDENTS
       Tq. and District Parbhani                   (Respdts.No.1/Orig. Plaintiff
                                                   and Defendant Nos.2 and 3)
                                      ----
Mr. Pravin N. Kalani, Advocate for the petitioners
Mr. N.D. Kendre, Advocate for respondent No.1
Mr. S.G. Jadhavar, Advocate for respondent No.3
                                      ----

                                    CORAM :        MANGESH S. PATIL, J.

                                    DATE       :   06.01.2021

ORAL JUDGMENT :


                Heard.

2. Rule. The Rule is made returnable forthwith. With the consent

of both the sides, the matter is heard finally at the stage of admission.

3. The petitioners are the original defendant Nos.1/1 to 1/ 4 in

Special Civil Suit No.22/2014, who submitted an application (Exh-196)

requesting to set aside the order passed by the Court directing the suit to

proceed ex parte against them, for their failure to appear inspite of service of

summons.

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4. According to the petitioners, they were not at all served with

summons and it is only after getting knowledge about filing of the suit that

they appeared and preferred the application (Exh-196).

5. The learned Advocate for respondent No.1, who is the original

plaintiff, submits that the application (Exh-196) was sans any reason for not

putting the appearance inspite of service of summons. The learned Judge has

specifically observed that the summons were duly served to these petitioners.

No error is committed by the learned Judge in rejecting the application (Exh-

196) in the facts and circumstances.

6. It is trite that the procedure is a handmaid of justice. When the

petitioners for whatever reason had not appeared inspite of service of

summons but wanted to put their appearance belatedly, the interest of justice

would have been sub-served by allowing them to put their appearance, may

be by fastening with liability to pay some costs for causing delay. The

approach of the learned Judge while passing the impugned order is pedantic

rather than pragmatic. It is only on the technical reasons that the learned

Judge seems to have refused to exercise the discretion.

7. There is no material to demonstrate and even the impugned

order does not specifically mention as to how any prejudice is likely to be

caused to respondent No.1/plaintiff if the petitioners are allowed to appear.

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8. It is in these circumstances, when the dispute pertains to specific

performance of a contract regarding an immovable property, the petitioners'

request ought to have been considered favourably.

9. The Writ Petition is allowed. The impugned order is quashed and

set aside. The learned Civil Judge shall now allow the petitioners to appear

in the suit on their depositing a cost of Rs.5000/- within two weeks from

today. The Rule is made absolute.

[MANGESH S. PATIL] JUDGE

npj/WP4085-2019