-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.4472 of 2007 Anil Jalinder Jadhav and others ..Petitioners vs. Smt.Bhamabai Raghu Shingare and others ...Respondents Shri U.P.Warunjikar for petitioners Shri Surel S.Shah for respondent nos.2 and 3. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 31st January, 2008 31st January, 2008 31st January, 2008 P.C. P.C. P.C. 1. The two applications which are preferred by the petitioner have been rejected and the grievance is that the orders of rejection were passed in absence of the Advocate. It is contended that respondent nos. 1 to 7 are the legal heirs of the original plaintiff who had filed the suit for partition and separate possession being civil suit no.174 of 1981. The suit was filed against one Shri Narayan Shingare and Smt.Gangubai Shingare. The suit was contested and later on the same was decreed. It was declared that the original plaintiff has 5/12th share in the suit property. The grievance further is that the appeal was preferred to challenge this decree. During the -2- pendency of the appeal, the present petitioner decided to purchase undivided share of Narayan Tatya Shingare by registered sale deed execute don 27th September, 2002. The said Narayan Shingare expired on 11th May, 2006. 2. The present petitioner moved an application being Exh.46 on 22nd August, 2006 under Order 1 Rule 10 of the Code of the Civil Procedure. He filed another application being Exh.348 on 22nd August, 2006 praying for condonation of delay in setting aside the abatement. 3. Since both the applications were rejected, consequential order is that appeal no.108 of 1998 abates. 4. The petitioners submit that both the orders are passed in absence of their Advocate and this is a fit case where this Court should quash and set aside the order and revive both the applications by restoring them to file of the District Court, Baramati. 5. It is undisputed that the applications were heard in absence of the petitioners. The order below Exh.46, copy of which is annexed as Exh.C, -3- itself records this fact. In so far as second application for condonation of delay is concerned, that application is also rejected and the copy of the order passed on the same is at Exh.E page 25. The same also records that the Advocate and parties were absent. 6. In my view, interest of justice would be subserved if Exh.48 in Civil Appeal No.80 of 1998 is restored and revived to the file of the District Court, Baramati for being heard afresh in accordance with law and after hearing all the parties including the respondents to this petition. The order dated 16th February, 2007 is accordingly quashed and set aside. 7. After this application is decided the learned Judge to consider the application Exh.46 and even there he should hear the parties and pass appropriate orders on merits and in accordance with law uninfluenced by the earlier observations. However, it is clarified that Exh.48 would be taken first and it is only thereafter the question of hearing other applications by the petitioners would arise. The petition is allowed in the above terms. No order as to costs. -4- (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)