1 FA 770.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 770 OF 2009 1. Dnyanoba S/o Babasaheb Solanke, Age : 60 Years, Occu. : Agril., R/o Amla, Tq. Dharur, Dist. Beed. 2. Champabai wd/o Babasaheb Solanke, Age : 27 Years, Occu. : Agril., R/o as above. .. .. Appellants Versus Shalanbai wd/o Abasaheb Solanke, Age : 45 Years, Occu. : Agril. & H. H., R/o Amla, Tq. Dharur, Dist. Beed, Now at Present R/o Narlad, Tq. Manwat, Dist. Beed. .. .. Respondent Shri P. N. Kalani, Advocate for Appellants. Shri M. B. Bharaswadkar, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 29TH APRIL, 2011. JUDGMENT : . Heard. Admit. 2 FA 770.09 2. Taken up for final hearing with consent of parties. 3. This is an appeal by the original defendants. The present respondent had filed a suit claiming maintenance. The Trial Court partly decreed the suit directing the defendants to pay monthly maintenance of Rs. 9,000/- to the plaintiff from the date of institution of suit. So also past maintenance of Rs. 1,44,000/- was granted. The charge was also kept on the property. Aggrieved thereby the defendants have filed the present appeal. 4. Shri Kalani, the learned counsel for appellants submit that no proper opportunity was given to the defendants to file written statement and the suit has proceeded without the written statement. The learned counsel submits that the Trial Court did not have the territorial jurisdiction to decide the suit. The plaintiff is not entitled for maintenance as even according to plaintiff the suit properties are proportionately inherited and succeeded by the respondent herself. The learned counsel further contends that the appellants had engaged advocate who was not resident of Parbhani and as such, he could not attend the Court and no W.S. order was passed which was not known to the appellants, because of non communication by the learned advocate the written statement could not be filed and could not 3 FA 770.09 take part in further proceedings. An opportunity be given to the appellants to file the written statement and adduce the evidence. 5. Per contra Shri Bharaswadkar, the learned counsel for the respondent/plaintiff submits that the appellants on their own volition remained absent. No justifiable reasons are given for the absence. It is also the duty of the appellants to contact their advocate. The contentions raised shows total apathy on the part of the appellants in prosecuting the case. Law would not come to the aid of such litigant and prays for dismissal of the appeal. 6. I have heard the learned counsel and have gone through the record and proceedings. The record shows that the summons were served upon the appellants and they had appeared through advocate. Thereafter, it appears that appellants have not participated in the proceedings. The suit proceeded without written statement and eventually came to be decreed. The Trial Court on the basis of statement of plaintiff decreed the suit. The reasoning adopted by the Court below does not show that he has arrived at a conclusion as to the exact income of the defendants so also the suit has proceeded without written statement. No doubt, the suit is for maintenance. It was also the duty of the defendants to contact their advocate and seek the progress of the 4 FA 770.09 case. But the reasons given by the defendants also appear to be plausible. The record shows that the defendants have not participated in the proceeding after engaging the advocate. In such circumstances, I feel it appropriate to relegate the parties to the Trial Court for decision afresh on merits of the matter. At the same time, the appellants also deserve to be directed to deposit some part of the maintenance amount. It is always better to have the judgment on merits of the matter. In the result I pass the following order. O R D E R i) The First Appeal is partly allowed. ii) The impugned order is quashed and set aside and the matter is remitted back to the Trial Court for decision afresh, on condition that the appellants deposit Rs. 1,00,000/- (Rs. One Lakh only) on or before 13.06.2011. The deposit of amount is condition precedent. iii) The parties shall appear before the Trial Court on 13.06.2011. iv) The appellants shall file the written statement on or 5 FA 770.09 before 20th June, 2011 and thereafter the Trial Court shall decide the said suit within a period of six (6) months, after giving opportunity of adducing evidence to both parties. [ S. V. GANGAPURWALA, J. ] bsb/April 11