1 wp 7506.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7506 OF 2011 Dr. Sudhir Hanmantrao Deshmukh, Age : 58 Years, Occu. : Pensioner, R/o Kallamb, Dist. Osmanabad, At Present R/o Near Chawanda Hospital, Behind Hero Honda Show Room, Barsi Road, Padma Nagar, Latur, Tq. & Dist. Latur. .. Petitioner Versus Pradeep Hanmantrao Deshmukh, Age : 50 Years, Occu. : Agril., R/o Kasba on Gadhi, Kallamb, Tq. Kallamb, Dist. Osmanabad. .. Respondent Shri S. D. Hiwrekar, Advocate for the Petitioner. Shri Deshmukh, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 12TH DECEMBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present petitioner has filed regular civil suit for 2 wp 7506.11 declaration and injunction. When said suit was fixed for evidence on 21.01.2010 the plaintiff and his advocate remained absent, as such the Court dismissed the suit in default. The petitioner filed an application for restoration. The said application is also rejected. Aggrieved thereby the present petition is filed. 2. Shri Deshmukh, the learned counsel for the respondent strenuously opposes the petition and submits that the petitioner had deliberately remained absent on number of occasions. The grounds mentioned by the petitioner in his application for restoration are false. No medical certificate has been annexed to substantiate his contention. It has also came on record that he was aware of the date fixed, but still remained absent. He has also not stated which relative of his advocate at Solapur was admitted. The learned counsel relies on the judgment of learned Single Judge of this Court in a case of Ganesh Masuji Raner Vs. Pandharinath Reshmaji Raner reported in 2004 (3) Mah. L. R. 71 to contend that in absence of medical certificate and the sufficient cause the matter cannot be restored. 3. Shri Hiwarekar, the learned counsel for the petitioner 3 wp 7506.11 submits that, the petitioner on oath has stated about his illness. The same should have been relied. 4. With the assistance of learned counsel I have gone through the order. The plaintiff has filed a suit for declaration of his rights and injunction. The petitioner and respondents are brothers interse. On the date when the suit was dismissed, it appears that none of the parties were present. The plaintiff as well as defendant and their lawyers were absent. In view of that the dismissal is not U/O 9 Rule 8 of the Code of Civil Procedure. The plaintiff has led his oral evidence and has stated about his illness. There is nothing to disbelieve the same. Moreover, the plaintiff was not going to gain anything by causing any delay as it is submitted at bar by the learned counsel for the plaintiff that no prohibitory orders were obtained in the suit. The suit is a substantive suit for relief of declaration of the rights. When there is nothing to disbelieve the grounds stated by the petitioner and oral evidence to that effect has been led, there is no impediment to restore the suit. The Court has taken a very hyper technical approach while rejecting the application. 5. In the light of the above, I am inclined to quash and set aside the impugned order. However, the petitioner also deserves 4 wp 7506.11 to be mulct with the cost. In the result I pass the following order. O R D E R i. The impugned order is quashed and set aside and Misc. Civil Application No. 14/2010 is allowed. ii. The suit R.C.S. No. 294/2007 is restored to its original position on condition that the petitioner pays cost of Rs. 10,000/- (Rs. Ten thousand only) to the respondent within a period of four (4) weeks from today. iii. The payment of cost is condition precedent. iv. Rule is made absolute in above terms. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11