1 WP 10338.2010 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 10338 OF 2010 Kautika S/o Ananda Mutkule Age : 30 Yeas, Occ. : Agrilculture, R/o : Suldali, Tq. : Sengaon, Dist. : Hingoli. .... PETITIONER V E R S U S 1. Manjulabai W/o Kautika Mutkule Age : 28 Yrs., Occ. Household, R/o : Suldali, Tq. : Sengaon, Dist. : Hingoli. 2. Kum. Kaveri D/o Kautika Age : 11 Yrs., Minor, U/g of natural mother, Respondent no. 1 i.e. Manjulabai W/o Kautika Mutkule, R/o : Suldali, Tq. : Sengaon, Dist. : Hingoli. .... RESPONDENTS Mr. P.N.Kalani ,Advocate for the Petitioner. Mr. B.S.Kudale, Advocate for Respondents. 2 WP 10338.2010 - ( J ) CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT: 06/06/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing at the stage of admission. 2. Heard the learned counsel for the respective parties. 3. Mr. Kalani, the learned counsel for the petitioner submits that the Appeal which was filed against the impugned Judgment and decree came to be dismissed under Order XLI Rule 17 of the Code of Civil Procedure. The Advocate appearing for the present petitioner did not appear in the Court and conduct the said Appeal. Thereafter, when the petitioner got the knowledge, he filed an application for re-admission of Appeal under Order XLI Rule 19 of the Code of Civil Procedure. There was delay in filing the said application. As such, the petitioner also moved an application for condonation of delay. The lower appellate Court on wrong assumption, rejected the said application. The petitioner was not required to deposit paper book charges. The learned counsel submits that the rights of the petitioner are involved. The Appeal is the substantive right and as 3 WP 10338.2010 - ( J ) such on such technical ground the petitioner may not be deprived of the said substantive right. 4. Per contra, Mr. Kudale, the learned counsel for the respondent submits that the attitude of the petitioner in non payment of maintenance amount is callous. In spite of the directions of this Court, directing the petitioner to deposit Rs. 40,000/- by 31/5/2011, the petitioner has failed to deposit the same. According to the learned counsel, no error is committed by the lower appellate Court while rejecting the said application and passing the impugned Order. The petitioner is avoiding to pay the maintenance charges and for the said reason was protracting the Appeal. Even the petitioner has made allegations against his Advocate. 5. The Appeal U/s 96 of the Code of Civil Procedure is a substantive right. In fact, the first appellate Court is the last fact finding court. No doubt, the matter is regarding the payment of maintenance amount. The record shows that an amount of Rs. 28,000/- was paid and the remaining amount has not been paid. Mr. Kalani, the learned counsel states that if some time is granted, the petitioner would pay Rs. 40,000/- as directed by this Court. 4 WP 10338.2010 - ( J ) 6. It is not disputed that the Appeal was dismissed for non payment of paper book charges. In fact, as per Order dated 8/2/2007, the Appeal was directed to be heard without paper book in view of the joint pursis filed by the learned counsel for the appellant and the respondent. As the Appeal was to be heard without paper book, no question arises of payment of paper book charges. This itself shows that the order dismissing the Appeal was passed on a wrong premise. For such error, the appellant can not be made to suffer. However, the appellant has also not taken pains to file an application for restoration in time. The matter is regarding payment of maintenance amount to the respondent and even this Court has directed the petitioner to pay Rs. 40,000/- as maintenance. The petitioner is bound to obey the said order passed by this Court. 7. In light of the above, the Writ Petition is allowed on following terms : (i) The impugned order is quashed and set aside on condition that the petitioner deposits an amount of Rs. 50,000/- by 4/7/2011 before the lower appellate Court. (ii) The deposit of amount of Rs. 50,000/- as directed is condition precedent. (iii) If the amount of Rs. 50,000/- is deposited, then the application 5 WP 10338.2010 - ( J ) for restoration of the Appeal shall be registered and heard on merits. (iv) If the amount of Rs. 50,000/- is not deposited by 4/7/2011, then the impugned order shall stand. 8. Rule is accordingly made absolute. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 10338.2010 - ( J )