(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 140 OF 2011 Abdul Majid s/o. Shaikh Gudu, Age : 63 years, Occupation : Business, R/o. Peer Burhannagar, Nanded. .. Petitioner. versus Nanded Waghala Municipal Corporation, Nanded, through its Commissioner. .. Respondent. ....................... Mr. R.R. Mantri, Advocate, for the petitioner. Mr. S.V. Kurundkar, Advocate, for the respondent. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 15TH MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. R.R. Mantri, appearing for the (2) petitioner, and Adv. Mr. S.V. Kurundkar, appearing for the respondent. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. Short contention of Adv. Mantri is, the court of District Judge-2, Nanded, while delivering judgment on 25th February 2010, recorded a finding that the trial court had jurisdiction to take cognizance of RJE, as filed. According to him, with this finding, the matter should have been sent back to the trial court to enable the petitioner to lead evidence to substantiate reasons for his absence on 14-1-2004 when earlier RJE No. 111/2001 came to be dismissed in default. He states that when impugned order dated 29-11-2008 was passed by the IIIrd Joint Civil Judge (Senior Division), Nanded, in subsequent RJE registered as Misc. RJE No. 33/2007, matter was not fixed for recording to evidence and only issue of tenability was to be inquired into. According to him, while deciding that issue, a stray and unwarranted observation about not producing medical evidence by the petitioner has been recorded but that is of no relevance. 4. Adv. Mr. S.V. Kurundkar, appearing for the (3) respondent / Municipal Corporation, points out that ultimate effort is to restore the suit filed in the year 1999. According to him, there is no jurisdictional error or perversity and hence appellate judgment dated 25-2-2010 is to be maintained. 5. With the assistance of learned Counsel for the parties, I have perused the records. The suit filed in the year 1999 simpliciter for injunction, in an attempt to protect alleged possession and complaining of forcible efforts to dispossess on the part of Municipal Corporation, was dismissed in default on 21-3-2001. RJE No. 111/2001 was then filed for restoring that suit and that RJE was dismissed in default on 14-1-2004. Thereafter, on 23-9-2004, subsequent RJE registered as Misc. RJE No. 33/2007 came to be filed. That has been dismissed on 29-11-2008 after recording that petitioner did not adduce any evidence and that such RJE was not maintainable as powers under Section 151 of CPC could have been exercised only by superior courts and not by trial court. In appeal memo registered as Misc. Civil Appeal No. 2/2009, the petitioner made a specific grievance and contended that on 29-11-2008, Misc. RJE was not at the stage of recording of evidence and preliminary objection about its tenability was only to be looked into. Arguments were also advanced accordingly. (4) 6. The impugned judgment of the appellate court dated 25-2-2010 when viewed in this background, shows that the appellate court has found the conclusion of trial court about non- availability of inherent powers to it unsustainable and therefore, has answered Issue No.1 about the correctness of order of trial court in favour of the present petitioner. But then, it proceeded to note conduct, as is apparent from various dismissal mentioned supra and concluded that the petitioner had no case as he was always negligent. 7. In the process, the appellate court lost sight of the fact that on 29-11-2008, matter was not fixed for evidence and hence petitioner did not get opportunity to put forth any evidence justifying his absence when his first RJE was dismissed in default on 14-1-2004. Denial of that opportunity, therefore, has resulted in serious prejudice to the petitioner. The petitioner did not get reasonable opportunity to establish his bona fides and reasons for his absence and ignoring this, the material on record has been used by the appellate court to non-suit him. The material could have been used after giving reasonable opportunity of hearing to the petitioner. The approach of the appellate court is unsustainable. 8. In the result, the petition is allowed. (5) (i) The impugned order dated 25-2-2010, passed by the learned District Judge-2, Nanded, in Misc. Civil Appeal No. 2/2009, to the extent it dismisses appeal, is quashed and set aside. (ii) In view of the finding recorded by that court, that order of the trial court was not just and proper, order dated 29-11-2008, passed by the learned IIIrd Joint Civil Judge (Senior Division), Nanded, in Misc. RJE No. 33/2007, is also quashed and set aside. Misc. RJE No. 33/2007 is restored back to the file of that court, for permitting petitioner / applicant to lead evidence in support of his contentions. After such evidence is led, trial court to permit the respondent / Municipal Corporation before it, to lead evidence in defence. Thereafter, it shall proceed further to decide Misc. RJE No. 33/2007 on merits in accordance with law. (iii) As the challenge is pending since the year 1999, proceedings in Mis. RJE No. 33/2007 are expedited. Parties are directed to appear before that court on 8th April 2011 and to abide by its further instructions in the matter. That court shall attempt to decide Misc. RJE No. 33/2007 as early as possible and in any case, within a further period of six months. (6) 9. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp140