1 WP-4407-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 4407 OF 2010 WITH CIVIL APPLICATION NO. 2459 OF 2010 Mr. Maruti Dhondi Mane ) Age 70 years, Occ: Agriculture ) R/o Nagthane, Tal: Palus, Dist. Sangli. ).. Petitioner. Vs. 1) Mr. Shahnur Dadu Nadaf ) Age 56 years. ) 2) Mr. Gan Dadu Nadaf Age 52 years ) 3) Mr. Basherkhan Dadu Nadaf ) Age 45 years. ) 4) Mr. Jahgir dadu Nadaf Age 43 years ) All havd occupatino : Agricultue. ) R/o. Nagthane Tal: Palus, Dist.Sangli.)..Respondents Mr. Sachin Subhash Tigde,Advocate, for the petitioner. Mr. Bhushan A.Walimbe,Advocate for the respondents. CORAM: J.H.BHATIA,J. DATE : 28th September, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard learned Counsel for the parties. 2 WP-4407-10.sxw 2. The suit filed by the plaintiff-respondent was decreed and against that judgment and decree for perpetual injunction, the defendant-petitioner had filed Appeal in 1994 before the District Court, Sangli. The appeal was pending for about 5 years in the District Court and then it was transferred to the newly established Court of Additional District judge at Islampur. Then it was numbered as Regular Civil Appeal No.330 of 1999. In 2002, that appeal came to be dismissed in default. According to the petitioner, he was not aware about this and therefore in 2004, he made an application, being Misc. Application NO.7/2005 for restoration of that appeal. That application was also pending for about three years and it was also dismissed in default in 2008. Thereafter, the petitioner filed Misc. Application NO.52/2008 for restoration of Misc. Application No.7/2005. The second application came to be dismissed in December, 2009. That order is challenged in the present petition. 3. From the facts brought on record, it appears that the Advocates for the petitioner appearing before the appellate Court was not diligent and they allowed the appeal and then the application for restoration to be dismissed in default. At the same time, it also needs to be noted that the appellate Court also took very long period in taking the matter for hearing. As noted above, the appeal filed by the petitioner was pending before the District Court, Sangli, for a period of 5 years 3 WP-4407-10.sxw before it came to be transferred to the newly established Court at Islampur. There it was dismissed in default in 2002 and thereafter the application for restoration was required to be moved. Fact remains that original appeal could not be heard. Nothing has come on record that because of the delay or disposal of the appeal, the circumstances have changed or that prejudice would be caused to the plaintiff. In view of the above, in my considered opinion, it will be appropriate to restore the appeal itself to the record with a direction to dispose of the same within specified period instead of wasting more time in restoration of earlier application for restoration. 4. In the interest of justice, Writ Petition is allowed subject to payment of costs of Rs.15,000/-, as offered by the petitioner. Subject to depositing the cost before the trial Court within four weeks from this day, the impugned order is set aside and Misc. C.A. No.52/2008 is allowed. In turn, Misc. Application No. 7/2005 is also allowed and Regular Civil Appeal No.330/1999 is restored to file. The District Judge, Islampur shall expedite the hearing and dispose of that appeal on its own merits by the end of January, 2011. He shall not give any adjournment to any of the parties, unless it is absolutely necessary. Cost amount, if deposited, be paid to the Plaintiff. In case, the cost is not deposited within four weeks, this Writ petition shall be deemed to have been dismissed. 4 WP-4407-10.sxw Rule made absolute accordingly. 5. As the petition is disposed of, C.A. does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)