Bombay High Court
Ramesh Shivajirao Sutar And Ors vs Vitthal Ramchandra Ptdar (Since ... on 20 March, 2025
2025:BHC-AS:15082
201.408.17 ao.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 408 OF 2017
1. Ramesh Shivajirao Sutar
Aged 40 years, Occ: Service
2. Jayavant Shivajirao Sutar
Aged 50 years, Occupation Business
Both r/o Radhanagari, Tal. Radhanagari,
District Kolhapur.
3. Anantrao Shivajirao Sutar
[since deceased his legal heirs]
A] Smt. Madhavi Anant Sutar
Aged 57 years, Occ. Household,
B] Nilesh Anant Sutar
Aged: 29 years, Occupation Nil
C] Kishor Anant Sutar
Aged 24 years, Occ: Education,
(A) to (C) R/o. Saravade, Tq. Radhanagari,
IRESH
MASHAL
District Kolhapur.
Digitally
signed by
IRESH
D] Sou. Megha Rajendra Sutar
MASHAL
Date:
2025.04.02
10:19:46
Aged 27 years, Occ. Household,
+0530
R/o Pushpanagar, Tal. Bhudargad,
District Kolhapur.
4. Rangrao @ Suresh Shivajirao Sutar
[since deceased by his legal heirs]
A] Smt. Pavitra Rangrao @ Suresh Sutar,
Aged 45 years, Occupation Household,
B] Kum. Sarika Rangrao @ Suresh Sutar,
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Aged 25 years, Occupation Education
C] Kum. Pavan Rangrao @ Suresh Sutar
Aged 18 years, Occupation Education,
A to C R/o Radhanagari, District Kolhapur
[No. 4(C) being minor through mother Smt.
Pavitra Rangrao Sutar] ....Appellants
Vs.
1. Vitthal Ramchandra Potdar
(Since decease d by his legal heirs)
A] Smt. Rukmini Vitthalrao Potdar
(deceased)
B] Ravindra Vitthalrao Potdar
Aged 44 years, Occupation Business,
C] Gajanan Vitthalrao Potdar,
Aged 42 years, Occupation Business,
D] Anila Vitthalrao Potdar
Aged 38 years, Occupation Business
No. B, C & D all R/o Radhanagari,
Taluka Radhanagari, District Kolhapur
E] Sou. Indira Narayan Potdar - deleted
Age Adult, Occupation Household,
R/o Bazar Bhogav.
Tq. Panhala, District Kolhapur.
EE] Sou. Kanchan Vasantrao Potdar - deleted
Aged 48 years, Occupation Household
R/o H. No. 173, A-Ward, Phulewadi,
6th Bus Stop, Kolhapur.
P] Sou. Suman Anant Potdar - deleted
Aged 46 years, R/o Kasaba Tarale,
Tq. Radhanagari, District. Kolhapur.
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2] Narayan Ramchandra Potdar
[since deceased by his legal heirs]
A] Smt. Laxmi Narayan Potdar,
Aged 75 years, Occupation Household
R/o. Radhanagari, District Kolhapur.
B] Prakash Narayan Potdar,
Aged 60 years R/o as above
C] Ramesh Narayan Potdar,
Aged 33 years, Occupation Agriculture
R/o as above.
D] Dilip Narayan Potdar
Aged 50 years, Rest as above
E] Dattatraya Narayan Potdar
Aged 42 years, Rest as above.
3] Krishna Ramchandra Potdar
[since deceased by his legal heirs]
A] Smt. Nirmala Krishnarao Potdar
Aged 70 years, Occupation Household
R/o Kasba Tarale, Tq. Radhanagari,
District. Kolhapur.
B] Rajendra Krishnarao Potdar
Aged 46 years, Occupation Business
R/o as above.
C] Bhalchandra Krishnarao Potdar,
Aged 38 years, Occupation Business
R/o 1182/35-E-Ward, Taluka Kolhapur
D] Sou. Vidhya Vishnupant Potdar
Aged 43 years, Occupation Household
R/o Kasba Tarale, Tq. Radhanagari,
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District Kolhapur.
E] Sou. Shobha Sanjay Devrukhkar
Aged 40 years, Occupation Household
R/o Rangari Badak Chawl, Lalbag,
Mumbai.
4] Sudhir Jotiram Potdar,
Aged 33 years, Occupation Business,
R/o Radhanagari, District Kolhapur
5] Saraswati Jotiram Potdar
Aged 65 years, Occupation Household,
R/o Radhanagari, District Kolhapur. ....Respondents
Mr. Vinayak Kumbhar i/b Mr. Sagar Mane for appellants
Mr. Prashant Bhavake for respondents
CORAM : GAURI GODSE, J.
DATE : 20th MARCH 2025
ORAL JUDGMENT:
1. Heard learned counsels for the parties. This appeal is preferred
by the original defendants to challenge the rejection of their application
filed under Order 41 Rule 21 of Code of Civil Procedure, 1908 ('CPC')
for re-hearing of the appeal which was decided by the first Appellate
Court. The respondents' suit for injunction was dismissed. Hence, the
appeal in the District Court was preferred by them. The present
appellants-defendants appeared in the appeal; however, were absent
when the appeal was finally decided. They, therefore, applied for
201.408.17 ao.docx
setting aside the ex-parte decree and re-hearing of the appeal. That
application is rejected by the impugned order.
2. Learned counsel for the appellants relied upon various entries in
the Roznama of the appeal. He submitted that the appeal was not
listed for hearing and the application at Exhibit 46 filed by the
respondents was listed for arguments and hearing. He submitted that
on 16th September 2014, when the judgment in the appeal was
declared, the appellants were absent as they were unaware about the
date. He submits that on 3rd May 2014, the appeal was adjourned for
preparation of paper book and the next date for arguments on Exhibit
46 was given as 10th June 2014. He points out the following dates from
the Roznama:
A) 10th June 2014: It was adjourned to 21 st August 2014
for arguments on Exhibit 46.
B) 2nd July 2014: Entry of receipt of paper-book and
adjourned to 21st August 2014 for arguments on Exhibit
46.
C) 21st August 2014: Both the parties and their advocates
were present, however, the Court was hearing another
appeal, hence, the next date was granted as 4 th
201.408.17 ao.docx
September 2014 for arguments on Exhibit 46.
D) 4th September 2014: present appellants and their
advocate were absent. However, respondents and their
advocate were present. The arguments of respondents
was heard and it was adjourned to 11 th September 2014
for arguments of present appellants.
E) 11th September 2014: Again present appellants and
their Advocate were absent, however, the Court was
busy in another matter. Hence, it was adjourned for
appellants' arguments on 12th September 2014.
D) 12th September 2014: Again appellants and their
advocate were absent, however, since the Court was
hearing another matter, it was adjourned to 16 th
September 2014 for judgment.
E) 16th September 2014: Again the appellants and their
advocate were absent and the Court pronounced the
judgment in the main appeal.
3. Learned counsel for the appellants by referring to the aforesaid
dates submits that the appellants were under impression that the
appeal was never posted for hearing and the next dates were given
201.408.17 ao.docx
only for arguments and orders on Exhibit 46. He submits that lastly
when the appellants and their advocate were present on 21 st August
2014, the next date was granted for arguments on Exhibit 46. He,
therefore, submits that the appellants carried an impression that the
appeal was never posted for hearing.
4. Learned counsel for the appellants justifies the absence of the
appellants on the next date by referring to the contents of the
application for restoration. He submits that on 4 th September 2014, the
appellants and their advocate were absent due to their personal
difficulty in view of the occasion of Gauri Ganpati Visarjan. He further
submits that the appellants and their advocates were unaware about
the next dates assigned and carried a bonafide impression that the
appeal was not ready for hearing and the next dates were granted only
for hearing on Exhibit 46. Learned counsel for the appellants further
submits that Exhibit 46 though was adjourned for argument, the
application was never decided by the Appellate Court. He, further,
submits that as per the entries in the Roznama, even on the dates
when the appellants and advocates were absent, the Court was busy
in another matter, hence, the next date was granted. He submits that
the entry dated 12th September 2014 also records that the Court was
201.408.17 ao.docx
hearing another matter. The Roznama records that the proceedings
were adjourned for judgment on 16th September 2014. Learned
counsel for the appellants, therefore, submits that even as per the
entries in the Roznama, the appeal was not heard on 12 th September
2014, however, it is shown as adjourned for judgment on
16th September 2014. Learned counsel for the appellants, thus,
submits that the appellants and their advocates' absence on
16th September 2014 when the appeal was decided was only due to
the bonafide impression that the appeal was never listed for hearing.
He submits that in view of the earlier dates fixed for arguments on
Exhibit 46, the appellants and their advocates carried a bonafide
impression that the appeal was not yet listed for hearing.
5. Learned counsel for the appellants, therefore, submits that the
appellants and their advocates' absence is due to sheer inadvertence
and there is no negligence on the part of the appellants and their
advocate. He submits that immediately after the knowledge of the
decision of the appeal, the appellant challenged the first Appellate
Court's decree by filing the second appeal in this Court. He submits
that in view of the liberty granted by this Court vide order dated 4 th
February 2015, the appellants filed the application on 26 th March 2015
201.408.17 ao.docx
for rehearing of the appeal before the District Court.
6. Learned counsel for the appellants submits that though the
respondents filed the reply to oppose the application for restoration of
the appeal, there was no specific denial on the grounds raised by the
appellants regarding the listing of the proceedings only on hearing on
Exhibit 46. He submits that there is no serious opposition raised on the
grounds for absence as contended by the appellants in their
application. He, thus, submits that the first Appellate Court while
rejecting the application for restoration has not properly appreciated
the grounds raised on behalf of the appellants justifying their absence
before the Court. He submits that the filing of the paper-book is
considered by the Court as the appeal being listed for final hearing. He
submits that the first Appellate Court completely ignored that as per
the dates entered in the Roznama, the dates were assigned for
hearing of the application at Exhibit 46. He submits that the reasons
recorded in the impugned order would amount to taking a hyper
technical view on the reasons stated by the appellants. He, therefore,
submits that considering the justification given by the appellants in
their application, the impugned order deserves to be quashed and set
aside for granting an opportunity to the appellants for hearing the
201.408.17 ao.docx
appeal before the District Court on merits.
7. Learned counsel for the respondents supports the impugned
Order. He submits that the appellants were always negligent and never
appeared before the Court on all the dates. He submits that even if
application at Exhibit 46 was listed for arguments, the appellants never
bothered to appear before the Court on the assigned dates. He
submits that the paper-book was already filed on 2 nd July 2014 and
thus the appeal was ready for final hearing. He submits that the
appellants are trying to take advantage of the entries in the Roznama
recording the next date assigned in view of the Court being busy in
hearing another matter. He submits that except for giving reasons for
absence on 4th September 2014, there is no justification for remaining
absent on 16th September 2014. He submits that serious prejudice
would be caused to the respondents if the appeal is restored. He, thus,
submits that the reasons given by the appellants are not justifiable and
thus, the impugned order correctly rejected the appellants' application.
8. To consider the rival submissions, I have perused the papers of
the appeal. I have examined the entries made in the Roznama.
Learned counsel for the respondents may be right in submitting that
the respondents and their advocates remained absent on four dates.
201.408.17 ao.docx
The grounds raised on behalf of the appellants regarding the dates
assigned for arguments on Exhibit 46 are required to be taken into
consideration. Though the entries in the Roznama indicates that the
next dates assigned on 4 th September 2014, 11th September 2014 and
12th September 2014 were for the arguments, the Roznama clearly
records that the next date was assigned as the Court was busy in
hearing another matter.
9. On 12th September 2014, the Roznama records that the Court is
busy in hearing another matter, however, the Roznama also records
that the proceedings are adjourned for judgment on 16 th September
2014. Considering the entries in the Roznama, it appears that there is
no clarity in the dates fixed for arguments or hearing of the appeal.
10. The reason given by the appellants regarding their absence on
4th September 2014 is not disputed by the respondents. Though there
cannot be any justification for remaining absent on the dates assigned
as per the Roznama, the entries in the Roznama cannot be completely
ignored which indicates that the next dates were assigned for
arguments on Exhibit 46. The Roznama nowhere clearly records that
the appeal is ready for hearing and it is listed for hearing. The entry of
2nd July 2014 for recording receipt of paper-book was not the assigned
201.408.17 ao.docx
date for the appeal. Even after the said entry, the appeal is not seen
posted for hearing/arguments on appeal.
11. The application for restoration of the appeal mentions the
justification for remaining absent. The reasons stated in the application
are not unbelievable.
12. Learned counsel for the appellants while justifying the reasons
given in the application submitted that the learned Judge could have
imposed cost for the absence of the appellants and their advocate. He
submits that the appellants are agreeable to pay some reasonable
cost to the respondents for the appellants' absence and the prayer for
restoration of the appeal.
13. Considering the reasons stated in the application and the entries
in the Roznama as recorded in the above paragraphs, I see no reason,
to refuse to accept the arguments raised on behalf of the appellants
that the appellants be granted an opportunity of hearing of the appeal
on merits. Such applications cannot be decided on hyper-technical
grounds. Hence, I find substance in the arguments raised on behalf of
the appellants that the respondents can be compensated by payment
of reasonable cost.
201.408.17 ao.docx
14. Hence, for the reasons stated above, the appeal deserves to be
allowed by passing the following order:
ORDER
(I) The impugned order dated 31 st January 2017
passed by District Judge-3, Kolhapur in Misc. Civil
Application No. 153 of 2015 is quashed and set aside.
(II) Misc. Civil Application No. 153 of 2015 is allowed in
terms of prayer clause (b) subject to payment of cost of
Rs. 50,000/- by the appellants.
(III) Cost shall be deposited in the District Court,
Kolhapur within six weeks from today.
(III) If the cost is deposited, the respondents are at
liberty to withdraw the same.
(IV) On payment of cost, Regular Civil Appeal No. 458 of
2012 be restored for hearing on merits.
(V) It is clarified that if on the date assigned by the
District Court for hearing of Regular Civil Appeal No. 458
201.408.17 ao.docx
of 2012, the appellants remain absent and not argue the
appeal on merits, the learned District Judge would be at
liberty to decide the appeal in the absence of appellants.
(VI) It is further clarified that the appellants shall not
seek any unnecessary adjournment and would co-
operate in early disposal of the appeal.
15. The appeal is allowed in the aforesaid terms.
[GAURI GODSE, J.]
