1 (WP 9429 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 9429 OF 2010 Ramrao Bhaurao Lipane & Ors. ...Petitioners Vs. Miraj Panchayat Samiti Karmachari Sahakari Pat Sanstha Ltd.,Miraj and Ors. ...Respondents ----- Mr. S.S. Patwardhan for Petitioners Mr. Kedar J. Patil for Respondents ----- CORAM: V.M. KANADE J. DATED: 25TH JANUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioners. 2. The Petitioners are aggrieved by the order passed by the Co-operative Court dismissing his application for amendment of the written statement which order was confirmed by the Co-operative Appellate Court by dismissing the revision application for want of prosecution. 2 (WP 9429 of 2010) 3. Brief facts of the case are that the Respondent No. 1- Cooperative Credit Society filed a dispute under section 91 of the Co-operative Societies Act in the Co- operative Court No.2, Sangli. The said dispute was filed in the year 2003. The Petitioners contested the said dispute by filing their written statement. The Disputants filed affidavit in lieu of evidence and the matter was kept for cross-examination. At that time, an application was made for amendment of the written statement. In the said application, it was contended that in paragraph 12 of the written statement that though material facts were pleaded, material particulars were not given. It was also contended in the amendment application that a welfare scheme was proposed and sanctioned and under the welfare scheme, the Petitioners were entitled to get certain concession and benefit and if the said benefit has been given to them, then the amount which was claimed by 3 (WP 9429 of 2010) the Respondent No.1-Credit Society would not remain outstanding and payable to the Society. This application for amendment was opposed by the Respondent No.1-Credit Society. The Co-operative Court dismissed the said application by passing a reasoned order. In the impugned order, it is mentioned that the proposed application for amendment was filed for prolonging the dispute and secondly, by the proposed amendment, the Applicants were putting up a totally new defence which was not permissible in the eyes of law. The learned Judge observed that membership welfare scheme was proposed in the year 2003 and was sanctioned and implemented in the year 2005 and at that time late Chandrasena Nipane was not a member of the said scheme. The learned Judge also observed that the said late Chandrasent Nipane had retired in the year 1999 and, therefore, she could not be a member of the said scheme. Against this order, a 4 (WP 9429 of 2010) revision was preferred before the Co-operative Appellate Court. The said revision was dismissed on 8.9.2010. In the order, it is stated that though the matter was specifically fixed for hearing on that date, the advocate for the Applicant was absent. 4. The learned counsel for the Petitioners submitted that the matter was in fact adjourned to 5th October, 2010. However, the matter appeared on board on 8.9.2010 on an earlier date. It is, therefore, submitted that the said order which was passed ex-parte, is liable to be set aside. 5. In my view, ordinarily, a matter which is dismissed for default is required to be restored if sufficient cause is shown. In the present case, however, in my view, no purpose would be served in restoring the said revision since the member of the Co-operative Appellate Court had observed that the matter was specifically fixed on 5 (WP 9429 of 2010) that date. It is a well settled position in law that the observation made by the Court has to be relied upon and not the submission made by the advocate as to what transpired on that date. Apart from that, even otherwise, after perusal of the impugned order passed by the Co-operative Court, it appears that the said order is well reasoned. The application for amendment of the written statement has been filed in the year 2009 after lapse of six years. It is obvious that every attempt was made to protract this proceeding. Surprisingly, the copy of this impugned order is not annexed to the petition. Taking into consideration the facts and circumstances of the case, in my view, this is not a case where this court should interfere with the impugned order passed by the Co-operative Court and confirmed by the Co-operative Appellate Court. Writ petition is, therefore, dismissed and disposed of. 6 (WP 9429 of 2010) (V.M. KANADE J.)