1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 785 OF 2010 1 Satkuntalabai w/o Sheshrao Haral, age 75 years, occ. Agril., r/o Barkhadi, Tq. Sengaon, Dist. Parbhani, 2 Sumanbai w/o Govindrao Maske, age 65 years, occ. Household, r/o Khairkheda, Tq. Pusad, Dist. Yeotmal, both appellants through G.P.A. Holder Sheshrao s/o Babarao Haral, age 78 years, occ. Agril., r/o Borkhodi, Tq.Jintur, Dist. Parbhani ...Petitioners VERSUS 1 Hasan s/o Babarao Haral, age years, occ. Agril., 2 Vinayak s/o Babarao Haral, age 27 years, occ. Agril., 3 Vasant s/o Ramrao Haral, age 43 years, occ. Agril., 4 Kailash s/o Ramrao Haral, age 63 years, occ. Agril., 5 Narayan s/o Babarao Haral, age years, occ. Agril., 2 6 Dnyaneshwar s/o Hasanrao Haral, age 28 years, occ. Agril., 7 Panjabs s/o Narayanrao Haral, age 33 years, occ. Agril., 8 Subhash s/o Sheshrao Haral, age 48 years, occ. Agril., 9 Maltibai w/o Narayanrao Haral, age 58 years, occ. Agril., 10 Sitabai s/o Hasanrao Haral, age 48 years, occ. Agril., 11 Parwatibai w/o Chandrakant Haral, age 43 years, occ. Agril., All r/o Boarkhadi, Tq. Sengaon, Dist. Parbhani ...Respondents (Original Respondents) ..... Shri A.S.Lomte, advocate for the petitioners Shri R.B.Bagul h/f Shri V.M.Lomte, advocate for the respondents ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 16 th September, 2010 ORAL JUDGMENT : 1 At the request of learned counsel for the petitioners, 3 petitioners are permitted to tender the copy of power of attorney in the Registry during the course of day. 2 Rule. Rule made returnable forthwith. With the consent of learned counsel for the respondents, the petition is taken up for final hearing. 3 By the present petition filed by the petitioners under Articles 226 and 227 of the Constitution of India, the petitioners prayed that the order dated 2.12.2009 below Exh.12 in Miscellaneous Civil Appeal No. 47 of 2007, passed by the learned Adhoc Additional District Judge, Parbhani be quashed and set aside and Miscellaneous Civil Appeal No. 47 of 2007 be ordered to be restored at its original stage. 4 The petitioners (original plaintiffs) had filed Regular Civil Suit No. 17 of 2006 before the learned Civil Judge, Junior Division, Jintur against the respondents herein for perpetual injunction and copy thereof is produced at Exh.’A’ to the petition. The petitioners also filed an application below Exh. 5 for temporary injunction therein and copy thereof is produced at Exh.’B’. 4 5 After hearing the parties, learned Civil Judge, Junior Division, Jintur passed an order below Exh. 5 on 18.9.2007 and thereby rejected the application of the petitioners for temporary injunction and copy thereof is produced at Exh.’C’. 6 Being aggrieved and dissatisfied by the said order dated 18.9.2007, the petitioners herein preferred Miscellaneous Civil Appeal No. 47 of 2007 before the learned Adhoc Additional District Judge, Parbhani and copy thereof is produced at Exh. ‘D’. 7 Thereafter said Miscellaneous Civil Appeal was listed for final hearing on 2.12.2009. However, due to some personal difficulty of the petitioners/appellants, who had gone out of station, they could not attend the matter on the said date. Hence, learned Adhoc Additional District Judge, Parbhani passed an order on 2.12.2009 and thereby dismissed said Miscellaneous Civil Appeal in default. 8 On the same day i.e. on 2.12.2009, the junior advocate moved an application for restoration of the said appeal, but the learned lower Appellate Court rejected the said application. 9 Being aggrieved by the said order dated 2.12.2009, 5 passed below Exh. 12 in Miscellaneous Civil Appeal No. 47 of 2007, by the learned Adhoc Additional District Judge, Parbhani, the petitioners have preferred the present Writ Petition for quashment thereof and for restoration of Miscellaneous Civil Appeal No. 47 of 2007 to its original stage. 10 Heard learned counsel for the respective parties. 11 Learned counsel for the petitioners submitted that the advocate of the appellants in Miscellaneous Civil Appeal No. 47 of 2007 was out of station due to his personal difficulty, and therefore, he could not remain present before the court on 2.12.2009 and could not conduct the said appeal, and accordingly, submitted that the absence of the advocate for the appellants was beyond his control and same should have been considered by the learned lower Appellate Court and should have restored the appeal to its original stage. 12 Learned counsel for the petitioners further canvassed that the said Miscellaneous Civil Appeal No. 47 of 2007 was dismissed in default on 2.12.2009 and on the very day itself the junior advocate of the appellants had preferred the application for restoration below 6 Exh.12 pointing out that the absence of advocate for the appellants was beyond his control, and therefore, the learned lower Appellate Judge should have considered the said absence and Miscellaneous Civil Appeal No. 47 of 2007 should have been restored to its original stage, giving opportunity to the appellants to prosecute the said appeal on its own merits. 13 Learned counsel for the petitioners relied upon the observations made by the Dviision Bench of this Court at Nagpur in the case of Sanjay Dagadappa Kapse vs State of Maharashtra and ors. reported at 2010 (1) ALL MR 263, which are as follows :- “ 5. Having regard to the number of applications, which are filed, we reiterate the observations of this Court in Shamdasani’s case and hold that where a matter is dismissed in default on account of slight negligence on the part of the party or Advocate in appearing before the Court, an oral application for restoration may be considered if made before the rising of the Court and it is not necessary for the party to file an application for restoration in writing. “ 14 Accordingly, learned counsel for the petitioners urged that since the petitioners had preferred the application Exh. 12 for restoration on 2.12.2009,present petition be allowed and the order 7 passed by the learned lower Appellate Court below Exh. 12 in Miscellaneous Civil Appeal No. 47 of 2007 on 2.12.2009 be quashed and set aside, and Miscellaneous Civil Appeal No. 47 of 2007 be restored to its original stage. 15 Learned counsel for the respondents opposed vehemently and submitted that Miscellaneous Civil Appeal No. 47 of 2007 was dismissed in default by the learned lower Appellate Judge on 2.12.2009, since it was the 6 th successive date of final hearing, on which the appellants and their advocate were absent and failed to advance the arguments. Moreover, it is also canvassed by learned counsel for the respondents that there were two advocates on record appearing for the appellants, but none of them was present before the court when the matter was called out for final hearing, as well as the appellants were also absent although it was 6 th successive date for final hearing, and therefore, learned lower Appellate Court rightly rejected the application Exh. 12 by order passed on 2.12.2009 and no interference therein is warranted. It is also pointed out that the averments made in the application (Exh.12) for restoration by the appellants were not supported by the affidavit, and therefore, also same was rightly rejected by the learned lower Appellate Court and no interference therein is called for in writ jurisdiction. 8 16 After hearing rival submissions advanced by the learned counsel for the parties, at the out set, it is apparent that Miscellaneous Civil Appeal No. 47 of 2007, preferred by the petitioners herein, was dismissed in default on 2.12.2009 due to non- appearance of the appellants and their advocate before the lower Appellate Court. It also appears that the appellants preferred the application for restoration i.e. Exh.12 before the learned lower Appellate Court, through the junior advocate on the very day of dismissal itself i.e. 2.12.2009, pointing out the reasons for absence of advocate for the appellants, which were beyond his control, as well as it was specifically mentioned in the said application Exh. 12 that even on the very same day the advocate for the appellants was ready to hear the matter, and therefore, requested to restore the said appeal under Order 41 Rule 19 of the Code of Civil Procedure. However, in spite of the said fact, that the application for restoration of the said appeal was preferred by the appellants on the very date of dismissal of the appeal i.e. 2.12.2009, the learned lower Appellate Court rejected the said application Exh. 12, merely on the technical grounds that the said application was not supported by the affidavit and it was the 6 th successive date for final hearing, and there were two advocates on record, but none of them appeared and submitted 9 that such dismissal of the application for restoration, which was preferred on the very day of dismissal of the appeal, merely on the technical grounds, cannot be permitted, since it deprives the opportunity for the appellants to prosecute the said appeal on its own merits. 17 It is also pertinent to note that a specific averment was made by the advocate for the appellants in application Exh. 12 that advocate for the appellants was out of station and he was unable to reach to the Court when the matter was called out for hearing, and accordingly, the absence of the Junior advocate was beyond his control and even on the very day itself the advocate was ready to conduct the hearing of the said appeal, and accordingly, requested to restore the same, which itself discloses the bona fides of the appellants that even on the very same day he was ready and willing to conduct the hearing of the appeal, if restored on file, as prayed for by the appellants. 18 Besides that, reliance can very well be placed on the observations made by the Division Bench of this Court in the afore stated case (supra). 10 19 In the circumstances, present petition deserves to be allowed and the impugned order dated 2.12.2009, passed by the learned lower Appellate Judge, on Exh. 12, in Miscellaneous Civil Appeal No. 47 of 2007, is required to be quashed and set aside, and the said application is required to be allowed and Miscellaneous Civil Appeal No. 47 of 2007 is required to be restored to its original stage in the interest of justice. 20 In the result, present petition is allowed in terms of prayer clause ‘B’ thereof and the order, dated 2.12.2009, passed by the learned Adhoc Additional District Judge, Parbhani, on Exh. 12, in Miscellaneous Civil Appeal No. 47 of 2007, stands quashed and set aside and the said application Exh. 12 is allowed and Miscellaneous Civil Appeal No. 47 of 2007 stands restored to its original stage. 21 Rule is made absolute in the afore said terms. (SHRIHARI P. DAVARE, J.) dbm/wp785.10