1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8718 OF 2010 Bhurekhan s/o Rehman Khan Muslman (died) through L.Rs. Petitioners Versus Islambi w/o Mohmmadkha Musalman, died through L.Rs. & others Respondents Mr. H.I.Pathan, advocate for the petitioners. Mr. A.G.Talhar, advocate for Respondents No.1(B) & 1(C). CORAM: R.M.BORDE, J. DATE : 29 th September, 2010. P.C.: 1 Petitioners are raising exception to the order dated 02.12.2009, passed by Principal District Judge, Jalgaon, dismissing Misc. Civil Appeal No.25 of 2005, filed by them. 2 Respondents – original plaintiffs instituted suit bearing Regular Civil Suit No.110 of 1976 claiming decree of partition and separate possession against petitioners – original defendants. Suit was decreed ex parte by the trial Court on 28.06.1979. Petitioners herein – original defendants presented an application for setting aside ex parte decree in the year 1981. The 2 application was not prosecuted properly by petitioners and as such same came to be dismissed for want of prosecution on 25.06.1996. An appeal was presented raising exception to the order of dismissal of application by presenting an appeal to the District Court on 07.09.1996 along with an application for condoning the delay. The application seeking condonation of delay was allowed by the District Court and appeal came to be registered as Misc. Civil Appeal No.25/2005. The District Court found that the cause exhibited by the defendants – petitioners herein for their failure to prosecute the litigation diligently, is not proper and convincing and as such, the appellate Court has refused to cause interference in the matter. 3 I have perused the judgment recorded by District Court and heard arguments advanced by learned Counsel for respective parties. 4 It is to be noted that the plaintiffs are kept away from enjoying fruits of decree in the suit instituted in the year 1976. The decree was passed on 28.06.1979. Although defendants claim to have presented application in the year 1981, same was not prosecuted with due diligence and ultimately, as a result of absence of petitioners – defendants, same came to be dismissed in the year 1996, after fifteen years of institution of suit. Defendants were not diligent in approaching the appellate Court also. Defendants contend that the Presiding Officer of trial Court, 3 dealing with the matter, was not available for 5/6 months during the year 1996 and as such, defendants have no knowledge about the date fixed in the matter. The reason given is not convincing. The matter, in spite of restoration, was kept pending for fifteen years and absence of the Presiding Officer, even if assumed to be for 5/6 months, will make no difference. Defendants were not diligent in prosecuting the litigation and the appellate Court was, therefore, justified in refusing to cause interference in the matter. In exercise of extraordinary jurisdiction under Article 227 of the Constitution, no interference is called for. Petition is devoid of substance. 5 Writ Petition, therefore, stands rejected. (R.M.BORDE) JUDGE ******* adb/wp871810