jpc wp1879-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1879 OF 2011 Balu Bhiva Guroda and others ... Petitioners Versus Anandrao Manjappa Nayak and others ... Respondents Mr. Sanjeev P. Kadam for the petitioners Mr. P.S. Dani a/w Mr. p. M. Arjunwadkar for Respondent Nos. 1A,1B,2& 4 CORAM: R. M. SAVANT, J. DATED : 16th November, 2011 P.C. : 1. The above Petition takes exception to the order dated 31st January, 2009 passed by the learned District Judge-2, Palghar by which the Appeal filed by the petitioners being Civil Appeal No. 8 of 2007 against the order dated 15th January, 2007 passed in Misc. Application No. 4 of 2005 came to be rejected. 2. The petitioners are the original plaintiffs in Regular Civil Suit No. 44 of 1997. From the averments and their tenor, it can be seen that a compromise arrived at between the petitioners and the defendants in Regular Civil Suit No. 12 of 1991 has been questioned by the plaintiffs in the said Regular Civil Suit No. 44 of 1997. The reliefs sought in the said Regular Civil Suit No. 44 of 1997 is based on the challenge to the jpc wp1879-11.sxw 2 compromise decree passed in Regular Civil Suit No. 12 of 1991. 3. The said Regular Civil Suit No. 44 of 1997 had been appearing from time to time before the Civil Judge, Junior Division, Dahanu. By an order dated 5th February, 2005, the said Suit came to be dismissed on account of the non appearance of the plaintiffs i.e. the petitioners herein on said date. Thereafter, an application for restoration of the said suit came to be filed. In the said application, averments were made to the effect that the plaintiff no.1 Laxmibai was unwell and in so far as other family members i.e. her sons who were also party to the Suit, they were not aware of the proceedings, and therefore, did not remain present at the time when the Suit was dismissed for default. In the context of the said averment, the said Laxmibai was cross examined, in which cross examination, she has contradicted her own case made out in the application namely, that she was unwell and that her sons were not aware of the said proceedings. She has, in turn, stated in the cross examination that though she was suffering from some tooth problem she was not taking any medicine and in so far as sons are concerned she has stated that they were aware of the said proceedings. The trial Court, considering the case made out in the application and the evidence which had come on record, did not deem jpc wp1879-11.sxw 3 it fit to accept the case as made out by the plaintiffs in the application for restoration and rejected the same. The trial Court further observed that Regular Civil Suit 44 of 1997 seems to have been field with a mala fide motive to deprive the defendants of the benefit of the compromise decree passed in Regular Civil Suit No. 12 of 1991. 4. Aggrieved by the order dated 15 th January, 2007 passed by the trial Court, the petitioners filed an Appeal before the District Court being Civil Appeal No. 8 of 2007. The said appeal came to be rejected by the First Appellate Court and the reasons and findings recorded by the trial Court came to be confirmed. The First Appellate Court has observed that in so far as the illness of the said Laxmibai was concerned, there was no evidence to that effect and in fact though it was stated by her that she was taking treatment of one Dr. Deo, no evidence was produced by her in that behalf. The First Appellate Court observed that since the sons who were all major were jointly looking after the matter and there was no reason for them to keep away from the proceedings, and therefore, the dismissal of the said suit by the trial Court could not faulted with. The First Appellate Court also took into consideration the fact that said Laxmibai has deposed that it is with an intention not to handover possession of the property in question jpc wp1879-11.sxw 4 pursuant to the compromise decree that the said Regular Civil Suit No. 44 of 1997 has been filed. The First Appellate Court observed that though the suit was fixed from time to time and was even adjourned on some occasions at the request of the plaintiffs, the plaintiffs, for some inexplicable reasons, have not led evidence and as indicated above, the order passed by the trial Court rejecting the restoration application came to be confirmed. 5. The learned counsel for the petitioner would contend that in terms of Order 17 of the Code of Civil Procedure, the plaintiffs were entitled to three adjournments and it is in fact on the third occasion, when an application for adjournment was in fact filed but the said suit came to be dismissed for default. In my view, the mandate of Order 17 of the Code cannot be interpreted in the manner sought to be done by the learned counsel for the petitioners. The said provision is an enabling provision which enables the trial Court to grant at the most three adjournments but it does not mean that the trial Court is prevented from passing any order until the exhaustion of the three adjournments, considering the conduct of the parties. The learned counsel for the petitioners would contend that the suit has been dismissed without it being tried on merits and, therefore, in the interest of justice the same may be directed to be tried on merits by jpc wp1879-11.sxw 5 allowing the restoration application. Per contra, it is submitted by Mr. Dani, the learned counsel appearing for the respondents herein i.e. the original defendants that the conduct as disclosed by the record which includes the evidence recorded in the cross examination of said Laxmibai will dis-entitle the plaintiffs to the grant of any discretionary equitable relief in the matter of restoration of the Suit. The learned counsel would contend that since the suit has admittedly been filed as per Laxmibai to deny the possession to the defendants pursuant to the decree passed in Regular Civil Suit No. 12 of 1991, no indulgence ought to be shown to the petitioners. 6. In the light of the conspectus of facts as narrated above, in my view, sufficient indulgence was shown by the trial Court to the plaintiffs. Both the Courts below, in my view, considering the facts as above have rightly come to the conclusion that the discretionary equitable relief by way of restoration of the Suit cannot be granted to the plaintiff. In my view, in the facts and circumstances of the present case, the exercise of jurisdiction under Article 227 of the Constitution of India is not warranted. In that view of the matter no case for interdiction is made out. Writ petition is accordingly dismissed. (R. M. SAVANT, J.)