1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2791 OF 2007 Sumanbai Gopichand Bajpayee & Ors ...Petitioners Versus Kashinathprasad Magan Misar & Ors ...Respondents ..... Mr. S.S. Bora, advocate for the petitioners Mr. V.V. Kabade, advocate for respondent No. 1A. Mr. Girish Rane, advocate for respondents 2 to 5. ..... CORAM: S. S. SHINDE, J. DATED: 26TH AUGUST, 2009 PER COURT:- 1 Heard. Rule. Rule made returnable forthwith. By consent of the parties, the petition is taken up for final hearing. 2 This petition is filed challenging the judgment and order dated 3.5.2001 passed by the learned C.J.S.D. Amalner in Misc. Civil Application No. 47 of 1998 and the judgment and order dated 7.6.2006 passed by the Additional District Judge, Amalner in Civil Misc. Appeal No. 23 of 2001. 2 3 It is the case of the petitioner that they filed R.C.S. No. 39 of 1996 against the respondents in the court of learned C.J.S.D. Amalner for partition and separate possession in respect of the suit property. On 12.1.1998 the suit was fixed for hearing, however, the petitioners-plaintiffs remain absent. The learned C.J.S.D. Amalner was pleased to pass order of dismissal of the suit in default. On 10.11.1998, the petitioners filed Misc. civil application No. 47 of 1998 under Order IX Rule 9 of C.P.C. praying for setting the order of dismissal in default and restoration of the suit as the petitioners were prevented due to sufficient cause as set out in the application from attending the court on the scheduled date. It is further case of the petitioners that none of the respondents filed their say opposing the application filed by the petitioners, the petitioners examined three witnesses in support of their application including medical practitioner. The learned C.J.J.D. Amalner, rejected the Misc. Civil application No. 47 of 1998 on 3.5.2001. The petitioners preferred appeal being Misc. Civil Appeal No. 23 of 2001 in the Court of Additional District Judge, Amalner on 28.6.2001. The Learned Additional District Judge, Amalner dismissed the said appeal by order dated 7.6.2006. Hence, this writ petition. 3 4 Learned counsel appearing for the petitioners submitted that when the application for restoration of civil suit was not seriously opposed by the respondents and in support of the case of the petitioner, three witnesses were examined including medical practitioner, there was no reason for the court to reject the application for restoration of the civil suit. Learned counsel further submitted that the view taken by the courts below is hyper technical, defeating the substantial right of the parties to claim immovable property. It is further submitted that the courts have not properly construed the true scope and extend the power of Order IX Rule 9 of C.P.C. as laid down by the Apex Court and erroneously rejected the application filed by the petitioners for restoration of the civil suit. The learned counsel invited my attention to the pleading of the petition and the grounds taken therein and submitted that in spite of specific averments in the application for restoration the courts below have failed to appreciate the case of the petitioners and have rejected the application. In support of his contentions learned counsel has invited my attention to the reported judgment of the Hon'ble Apex Court in the case of Sangram Singh Vs. Election Tribunal Kotah and Anr. Reported in AIR 1955 SC 425. He invited my attention to Head Note C of the said judgment and submitted that a code of procedure something designed to facilitate justice and further its ends; not a 4 penal enactment for punishment and penalties; not a thing desinged to trip people up. Learned counsel further submitted that this court may entertain this petition by setting aside the impugned judgment and order passed by the court below. 5 Learned counsel appearing for the respondents opposed the prayers in the petition and submitted that there was inconsistency/variation in the statement of the witnesses who were examined in support of the petitioners case. It is further submitted that since both the courts have held against the petitioners, this Court may not entertain the writ petition under Article 227 of the Constitution of India, therefore, he prayed for dismissal of the writ petition. 6 After hearing counsel appearing for the respective parties and on perusal of the pleadings in the petition and the annexures thereof, it seems that the respondents have not seriously opposed the prayer of the petitioners for restoration of the suit before the lower courts. Even inspite of the notice, respondents 4, 5 and 6 did not appear in the matter. There is also substance in the contention of the learned counsel for the petitioner that none of the respondents filed their say opposing the application filed by the petitioners and therefore, there was no reason for the courts below to reject the prayer of the petitioners for restoration of the suit. 5 7 On careful perusal of the judgment of the learned C.J.S.D Amalner, it appears that the trial court has taken a note that the witnesses are examined on behalf of the petitioners. The Court observed that the reason assigned by the petitioners that the applicant No.1 was suffering from fever and applicant No.2 was also suffering from fever, is not supported by the medical report. It is not in dispute or it is not case even as appreciated by the courts below that the applicants were not suffering from any ailments. The courts below observed that medical report does not support the contention of the petitioners that they are suffering from any particular ailment. The Medical Officer, Dr. Arun has deposed before the court and stated that the applicants were suffering from some ailments. Merely because there is some variance in the statement of the witnesses that they are suffering from particular ailment is not corroborated in to-to with the medical report, cannot be a ground to reject the application of the petitioners. In criminal matters, the criteria or parameters of strict proof is required however, in civil matters the same cannot be made applicable strictly. The person suffering from ailment himself is not medical practitioner and it is not possible for him to tell exactly from which ailment he is suffering. It is only after diagnosis the person can come to know that by which ailment he is suffering. 8 Viewed from any angle the medical report does support the contention of the applicants that they were suffering from ailment. 6 Apart from that the petitioners have not benefited by allowing their suit to be dismissed in default and therefore, the explanation which is given by the petitioners before the courts below appears to be true and correct. It cannot be forgotten that rights of the parties are valuable rights and that too in respect of immovable property and the said right cannot be taken away by dismissing the suit in default without adjudicating the same on merits. 9 It is not in dispute that the petitioners have filed application for restoration of suit within prescribed limit. Therefore, I find considerable substance in the petition. It is relevant to rely upon the observations of the Supreme Court in the case of Sangram Singh (supra), which are as follows:- “ A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be 7 precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.” 10 Taking over all view of the matter, the impugned judgment and order passed by the courts below are set aside. Rule made absolute in terms of prayer clause "C". *****