1 WP 8728.2010 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8728 OF 2010 1. Vilas Sahebrao Varkate Age : 52 Yrs., Occ. Agril., R/o : Ramwadi, Tq. & Dist. Osmanabad. 2. Vinayak Sahebrao Varkate Age : 47 Yrs., Occ. Agril., R/o : Ramwadi, Tq. & Dist. : Osmanabad 3. Balasaheb Sahebrao Varkate Age : 44 Yrs., Occ. Agril., R/o : Ramwadi, Tq. & Dist. : Osmanabad 4. Mangal Vijaykumar Aher Age : 37 Yrs., Occ. Household, R/o : Kajla, Tq. & Dist. : Osmanabad .... PETITIONERS V E R S U S 1. Sitabai Gana Mane Age : 85 Yrs., Occ. Household, R/o : Ramwadi, Tq. & Dist. : Osmanabad 2. Gundu Gana Mane Age : 60 Yrs., Occ. Agril., R/o : Ramwadi , Tq. & Dist. : Osmanabad 2 WP 8728.2010 - ( J ) 3. Anil Gundu Mane Age : 29 Yrs., Occ. Agril., R/o : Ramwadi , Tq. & Dist. : Osmanabad 4. Sunil Gundu Mane Age : 22 Yrs., Occ. Agril., R/o : Ramwadi, Tq. & Dist. : Osmanabad 5. Randhir Gundu Mane Age : 19 Yrs., Occ. Agril., R/o : Ramwadi , Tq. & Dist. : Osmanabad 6. Vikas Gundu Mane Age : 14 Yrs., Minor, U/g of Resp. No. 2 Gundu Gana Mane. .... RESPONDENTS Mr. S.B.Choudhari, Advocate for the Petitioners. Mr. S.S.Choudhari, Advocate for Resp. Nos. 1 to 6. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT: 06/06/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing at the stage of 3 WP 8728.2010 - ( J ) admission. 2. Heard the learned counsel for the respective parties. 3. The present petitioners had filed Appeal being aggrieved by the dismissal of the Suit. The Appeal was dismissed for default under Order XLI Rule 17 of the Code of Civil Procedure as the Advocate for the present petitioners remained absent. The present petitioners filed an application for readmission of Appeal under Order XLI Rule 19 of the Code of Civil Procedure. The said application is rejected. Aggrieved thereby, the present petition is filed. 4. Mr. S.B.Choudhari, the learned counsel for the petitioners submits that the Court below has taken a hyper technical view. It has rejected the application solely on the ground that the medical certificate of the illness of his Advocate was not produced. The learned counsel contends that even the respondents have not filed Say opposing the restoration. According to him, invaluable rights of the applicants are involved in the immovable property and the First Appeal filed before the lower appellate court is a substantive proceeding. 5. Mr. S.S.Choudhari, the learned counsel for the respondents 4 WP 8728.2010 - ( J ) submits that the Suit was filed in the year 1985. It was dismissed on 20/2/1990. The Appeal was filed immediately thereafter, but the same was registered and admitted in the year 2002. The same was dismissed as the Advocate for the appellant repeatedly remained absent. According to the learned counsel, no fault can be found with the order impugned. 6. The First Appeal is the substantive right of a party. The application for restoration was not opposed by the respondents even by filing their Say. It was expecting too much from the litigant to file the medical certificate of the illness of his erst-while Advocate, who also subsequently died. The litigation is regarding the possession of immovable property. The law should come to the aid of the litigant. 7. In light of the above, I pass the following order : The impugned Order is quashed and set aside on condition that the petitioner pays costs of Rs. 5,000/- ( Rupees Five Thousand only ) to the respondents or deposit the same in the lower appellate court within the period of one ( 1 ) month from today. If the cost is deposited as directed above, the lower appellate court should re-admit the Appeal to its original position if otherwise it complies with all other requirements. 5 WP 8728.2010 - ( J ) 8. Rule is accordingly made absolute with aforesaid directions. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 8728.2010 - ( J )