1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD APPEAL FROM ORDER NO.151 OF 2009 Sau. Maya W/o Subhash Jagtap Age : 33 years, Occ : Agri., & Household, R/o Bhutkarwadi, Savedi, Ahmednagar. APPELLANT VERSUS Sonaji Sakharam Jadhav Deceased Through L.Rs:- 1. Chabu Sonaji Jadhav Age : 48 years, Occ : Business, 2. Smt.Malanbai Banrao Jadhav Age : 42 years, Occ : Household, 3. Kishor Babanrao Jadhav Age : 30 years, Occ : Business, 4. Shilpa Santoshrao Shinde Age : 25 years, Occ : Business, 5. Vishal Babanrao Jadhav, Age : 23 years, Occ : Business, All R/o Bhople-Galli, Maliwada, Ahmednagar. RESPONDENTS .... Mr. V. S. Bedre, Advocate for appellant. Mr.B.S. Shinde holding for Mr.V. P. Latange, Advocate for respondent no.1. .... (CORAM : K. U. CHANDIWAL, J) DATE :14th January, 2010. ------------------------------ 2 ORAL JUDGMENT : 1. Heard. The appellant preferred Special Civil Suit No.94/2000 seeking specific performance of agreement of sale in respect of the agricultural field before the learned Civil Judge, Senior Division, Ahmednagar. The matter was ripe on 31.01.2004, however it could not be prosecuted by the plaintiff-appellant Maya on the ground that she suffered Typhoid from 27th January, 2004, she was getting treatment from Dr.Avinash More. Her absence resulted in dismissal of the suit. 2. Application for restoration was moved by plaintiff. The learned Judge by recording reasons dismissed the said application and hence, the present appeal. 3. The learned Judge apparently misconstrued the ground of ill-health of the plaintiff-appellant as it was supported by the evidence of the Medical Officer who has examined her. The plaintiff-appellant having given general power of attorney to one Kishor Jadhav 3 to look after the said matter, but the said attorney could not attend the matter, as on the day when the suit was called and dismissed, Mr.Kishor also remained, absent having gone out of city. Non- attendance in the situation does not appear to be deliberate and purposeful. Stake of parties in immovable property are involved. In the situation order rejecting to restore the matter requires interference. Hence the following order:- a) The order rejecting the restoration of Special Civil Suit No.94/2000 set aside, the Special Civil Suit no.94/2000 is restored to its original position. b) The parties shall appear before the learned Civil Judge, Senior Division, Ahmednagar on 4th February, 2010. c) The plaintiff-appellant shall pay costs of Rs. 10,000/- within a month from today. (K. U. CHANDIWAL) JUDGE gas/ao151.09