1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 68 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 68 OF 2011 *** 1. Heard Advocate Mr. Kulkarni for the Petitioner and Advocate Mr. Vakil for Respondents. 2. Petitioner had sought stay of suit filed by him pointing out that plaintiff No.2 (his wife) had become insane and hence proceedings seeking appointment of next friend vide MARJI 413 of 2009 are pending. Shri Kulkarni states that copy of those proceedings was tendered on record of trial Court but then trial Court overlooked that copy. According to him, therefore, there is failure to exercise jurisdiction. 3. Shri Vakil states that though copy was filed on record MARJI No.413 of 2009 was already dismissed in default. According to him, in the circumstances, impugned order does not call for any interference. 4. During hearing it has transpired that 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 68 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. present petitioner with his wife has filed a suit in order to protect possession over the suit property which is claimed to be taken on rent from Respondents. The wife of petitioner is claimed to be a daughter in the family of Respondents. She earlier had executed a power of attorney in favour of the present petitioner but lateron the same has been cancelled. In this situation MARJI No. 413 of 2009 came to be filed. Shri Kulkarni states that proceeding for restoration thereof are also pending. 5. The impugned order has not looked into copy of MARJI or then the contentions therein. Finding that its copy was not produced, therefore, itself shows non application of mind. The said order is, therefore, quashed and set aside. Trial Court to look into said copy and also all relevant facts to ascertain whether the prayer of stay of suit as made by the 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 68 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. petitioner needs to be granted. 6. Impugned order dated 12th November, 2010 is accordingly quashed and set aside and matter is restored back to the file of the trial Court. Rule made absolute accordingly. No costs. 7. Needless to mention that all contentions and defences available to the parties are kept open for adjudication by the trial Court. [B.P.DHARMADHIKARI, J.] Dated:30/03/2011. ans/68