1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 15. SA/185/2009 With CA/5739/2007 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. S.S. Thombare, Advocate for appellant. Mr. H.P.JADHAV, Advocate FOR Respondents no.1 AND 2 [CORAM : K.U. CHANDIWAL, J ] Date : 05th April, 2010. PER COURT : 1 Heard. 2 R.C.S. No. 96/2001 resulted in decree in favour of the plaintiff confirmed by first appellate court in the appeal being R.C.A. No. 101/2004. Concurrent findings are subject of criticism by defendant no.1. 3 Learned counsel submits, there was no participation by defendant by 2 filing written statement and consequently the first appellate court should have remanded the matter for fresh hearing. 4 The learned counsel for the appellant while vehemently arguing the matter, has taken recourse to the judgment of the Apex Court in the matter of Balraj Taneja and another vs. Sunil Madan and another reported in 1999 AIR SCW 3345. The Honourable Lordships have indicated the situation in which the suit could proceed even if there is no written statement on record. Going through the judgment of Apex Court and tested with the facts of the present case, I find the laxity demonstrated by the appellant was the root cause. That apart the plaintiff’s evidence was supported with relevant documents, could not have been objected to. The judgment of Apex Court will not oscillate to hold the balance in favour of the appellant. 3 5 The counsel representing respondents no.1 and 2 submits that he has received papers now and wants time to proceed. 6 Having gone through the judgments. I find that first appellate court rightly did not exercise powers in terms of Order XLI Rule 23 -A and rule 25 of Code of Civil Procedure, as the defendant (Appellant) demonstrated deliberate latches and lapses in attending the matter. 7 The plaintiff claimed to be son of defendant no.1. The marriage of his mother Sau. Gajrabai with Rajaram was 29 years prior to the suit and was in subsistence. In spite of such marriage, defendant no.1 allegedly had second marriage. Be that, it may be, the fact remains that Santosh the plaintiff no. 1 was in womb at the material time when Girjabai was driven away. There is nothing to suggest that paternity of Santosh could be questioned. The 4 slackness by defendant no.1 in not attending matter speaks volume against him. The record has been correctly analyzed by first appellate court in tune with what was done by the learned Civil Judge (Senior Division). Second appeal does not involve any substantial question of law to be formulated. Second Appeal dismissed. No cost. C.A. dismissed. [K.U. CHANDIWAL, J.] tsk/sa185.09