1 wp2436/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2436 OF 2011 Sambhaji s/o Mahatarji Nagare Petitioner V E R S U S Haribhau s/o Mahipat Gangawane & Ors. Respondents Shri Siddharth R. Deshpande, Advocate for the petitioner None present for the respondents CORAM : A.V. NIRGUDE, J. DATED : 13th October, 2011 PER COURT : 1. This writ petition filed under Articles 226, 227 of the Constitution of India challenges the order dated 21st February, 2011, passed by the learned District Judge – 5, Aurangabad, on MARJI No. 341 of 2010. 2. The petitioner was appellant in Misc. Civil Appeal No. 189 of 2008, which was dismissed for default on 20th August, 2010. Therefore, the petitioner filed miscellaneous application for re-admission of the appeal, which was dismissed for default under the provisions of Order XLI Rule 19 of the Code of Civil Procedure. The learned Judge, it seems, took a very pendentic approach and refused to admit the appeal. The learned Judge, it seems, was not at all reasonable since beginning when he himself dismissed the appeal for default on 20th August, 2010. The application was made for setting aside of the order on the same day, but the learned Judge rejected such application saying that such application was not made by the petitioner and the Advocate was not empowered to make such application. He used a very technical reason for rejecting the application. Same thing 2 wp2436/11 occurred when an independent application was moved by the petitioner for restoration of the appeal. This time he said that the ground of ill-health of the petitioner mentioned now, was not mentioned earlier on the day when the appeal was dismissed. The learned Judge ought to have realized that he is there to decide the appeal on merits. The learned Judge ought not to have dismissed this application on such technical reason. In view of this, Writ Petition stands allowed. Miscellaneous Civil Appeal stands restored. The learned Judge shall decide it as per his priority. ( A.V. NIRGUDE, J. ) SRM/wp/2436/11/13/10/11