Bombay High Court
Shri. Nathalal Girdharlal ... vs Maharashtra State Electricity ... on 21 January, 2022
Bench: N. R. Borkar
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Digitally
signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DINESH
DINESH
SADANAND CIVIL APPELLATE JURISDICTION
SADANAND SHERLA
SHERLA Date:
2022.01.24
WRIT PETITION NO. 5017 OF 2016
18:19:16
+0500
Nathalal G.Thakkar
(since deceased through Lrs.
Hasumati N. Thakkar and ors. ...Petitioners.
V/s.
Maharashtra State Electricity
Distribution Company and ors. ...Respondents.
Mr. Mandar Limaye for the Petitioners
Ms Anjali R. Shiledar - Baxi for Respondent Nos.1 to 4.
CORAM : N.R. BORKAR, J.
DATE : 21.01.2022.
P.C. :
1. This petition takes an exception to the order dated 4.1.2016
passed by the District Judge-3, Thane in Civil Miscellaneous
Application No. 315 of 2015.
2. The petitioners are the legal representatives of the original
plaintiff Nathalal Thakkar, who had fled Special Civil Suit No.284
of 2001 against the present respondents. The said suit was
dismissed. Being aggrieved by the judgment and order of the trial
Court, the original plaintiff fled the frst appeal before this Court.
However, due to enhancement of pecuniary jurisdiction of the
District Court, in the year 2012 the said appeal was transferred to
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the District Court, Thane. The appeal was, thereafter re-numbered
as Civil Appeal No. 304 of 2012. After transfer, notice was issued
to the original plaintiff. The notice was returned unserved as
original plaintiff was not found on the address mentioned in memo
of appeal. The appeal was, thus dismissed for want of prosecution
on 25.9.2014. In the meantime, the original plaintiff died on
23.3.2014. The petitioners herein who are legal representatives of
the original plaintiff fled the application for restoration of appeal
along with an application for condonation of delay. The learned
appellate Court rejected the said application by the order
impugned.
3. I have heard the learned counsel for the petitioners and the
learned counsel for the respondents.
4. The fact that initially appeal was fled before this Court and
it was transferred to the District Court in the year 2012 is not in
dispute. The petitioners, in their application for condonation of
delay, have stated that after transfer of the appeal to the District
Court they never received any notice from the said Court. It is
further stated that the original plaintiff Nathalal Thakkar expired
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on 23.3.2014. Thereafter, they made enquiry about the status of
appeal and they were told that they would get notice of hearing of
the said appeal. They have stated that as they did not get notice
for considerable time, again they made enquiry in the month of
September 2015 and at that time they were informed that their
appeal has been dismissed for want of prosecution.
5. I have perused the order impugned. According to the
appellate Court, the notice of hearing was issued to the original
plaintiff. As he was not found on the address mentioned in appeal
memo, no fault can be found with the order of dismissal of appeal
for want of prosecution. The approach of the appellate Court is
wholly erroneous.
6. Considering the facts and circumstances of the case, the
appellate Court ought to have allowed the application for
condonation of delay. The order impugned therefore, cannot be
sustained. In the result, following order is passed.
ORDER
a. Writ Petition is allowed.
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b. The order impugned is set aside. The delay in fling
application for restoration of appeal is condoned.
c. The parties shall appear before the appellate Court on
15.2.2022.
[N.R.BORKAR, J.]
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