0407wp806.11.odt 1 THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.806 OF 2011. Sunil G.Raut ..vs.. Smt.Sheshwantibai G.Raut. ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... Mr. V.M.Deshpande, Adv. for the petitioner. Mr.R.S.Sundaram, Adv. for Resp. 1 and 2. Mr.R.R.Srivastava, Adv. for resp.no.3. CORAM : R.M.SAVANT, J. DATED : 4th July, 2011. 1. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 27/1/2011 passed by the learned 9th Additional District Judge , Nagpur by which order the applications at Exh.27 and Exh.29 came to be rejected. 2. The petitioner herein is the original defendant no.3 to the suit filed by the respondent no.3 herein for Specific Performance of Contract for sale of immovable property. The said suit came to be decreed against the petitioner and the respondents no.1 and 2 herein. The agreement in question which was entered into by the mother of the present petitioner i.e. the respondent no.1 Sheshwantibai in so far as 0407wp806.11.odt 2 the said suit was concerned, is proceeded ex parte against the present petitioner. 3. The respondent no.1 aggrieved by the decreeing of the said suit has filed Reg.Civil Appeal No.555 of 2009. In the said Appeal, significantly the petitioner herein did not appear and therefore an order came to be passed on 29/7/2010 to proceed ex parte against the petitioner. It is pertinent to note that on 7/01/2011, an order came to be passed by the First Appellate Court on an application filed by the respondent no.1/Appellant for extension/continuation of status quo. The Appellate Court, after observing that the stay was granted only till preparation of paper-book, which was extended considering the circumstances from time to time, further observed that the appellant i.e. the respondent no.1 seems to take advantage of the situation and wanted to continue the said order of status quo. The Appellate Court, as a final indulgence, granted stay till the next date of hearing. Pertinently, thereafter on 15/1/2011 the petitioner herein, who is the son of the appellant Sheshwantibai and who was the defendant no.3 in the original suit, filed application Exh.27 seeking setting aside of the order dated 29/7/2010 and further by application Exh.29 to give his other address at Narendra Nagar. Both the applications were rejected by the First Appellate Court on the grounds mentioned in the impugned order. The gist of the reasoning of the First Appellant Court is that the petitioner, who was the defendant no.3, was served in the suit at the address of Borkute Lay-out, Narendra Nagar, Nagpur, which summons was accepted by the wife of the petitioner, and inspite of such service the petitioner chose to remain absent and thereby resulting in the 0407wp806.11.odt 3 Trial Court passing an order on 3/1/2003 to proceed ex parte against the petitioner. The First Appellate Court was, therefore, of the view that the application, Exh.27 filed by the petitioner was a mischievous ploy to protract the hearing of the matter, as the Appeal filed by his mother Sheshvantibai has already been fixed for hearing. 4. Having considered the reasons mentioned by the First Appellate Court in the impugned order and taking into consideration the conspectus of facts as mentioned in the earlier part of this order, the finding of the First Appellate Court that the applications filed by the present petitioner are with a view to prolong the decision in the Appeal or protract the same cannot be faulted with. 5. It is pertinent to note that though the suit had proceeded ex parte against the petitioner, the petitioner has not chosen to file his own Appeal but now intends to file cross-objections. The applications Exh.27 and 29 have also been filed almost after a period of five months from Appellate Court's passing the order dated 29/7/2010 to the effect that the Appeal to be proceeded ex parte against the petitioner. This viewed, in the background of the order dated 7/1/2011, can only lead to an irresistible conclusion that the petitioner is indulging in dilatory tactics so as to delay the hearing of the Appeal by the First Appellate Court. In my view, therefore, no indulgence can be shown to such a petitioner. In that view of the matter, no case for interference is made out. Writ petition is accordingly dismissed. JUDGE 0407wp806.11.odt 4 chute