1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4036 OF 2006 WRIT PETITION NO. 4036 OF 2006 WRIT PETITION NO. 4036 OF 2006 Krishnasagar Virsawmi Mitthapalli .. Petitioner. vs. Sidlingawwa Gurubasawwa @ Basavraj Kalshetti & Ors. .. Respondents. Mr. Shrishail Sakhare for petitioner. Mr. Ashoke Tejane for Respondents. CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. DATE : 28th November, 2006. DATE : 28th November, 2006. DATE : 28th November, 2006. P.C. . Rule. Rule made returnable forthwith. Taken up for final hearing by consent of the parties. 2. The present respondent is original plaintiff who has filed a suit for declaration and injunction against the present petitioner. The suit was fixed on 23.12.005 for hearing. On account of absence of the plaintiff when the matter was called out, the trail court dismissed the suit for want of prosecution. It is the case of the petitioner that 2 the respondent filed an application before the trial court on 2.1.2006 and the trial Court has allowed the said application and restored the suit without affording an opportunity of hearing to the present petitioner. The learned counsel for the respondents disputes the correctness of the statement made by the learned counsel for the petitioner that the application for restoration was filed on 2.1.2006 and submits that as a matter of fact the application was filed on 23.12.2005, which was allowed by passing order on 2.1.2006. Though the learned counsel for the respondents disputes the date of filing of the application for restoration, it is not disputed that the impugned order came to be passed without affording any opportunity to the present petitioner of being heard in the matter. On dismissal of the suit, a right is accrued in the other side and thus the order of dismissal of suit in default could not have been set aside without giving an opportunity to the present petitioner/defendant of being heard in the matter. I do not propose to go into other disputed questions nevertheless as the impugned order is passed without affording an opportunity of being heard in the matter, the order cannot stand the test of principles of natural justice. Hence, the impugned order restoring the suit dated 2.1.2006 passed by the VIth Civil Judge, Junior Division, Solapur below Exhibit - 83 in Regular Civil Suit No. 1270 of 2000 3 is quashed and set aside and the matter is remanded back to the trial court for a fresh decision which shall be reached after affording an opportunity to both sides of being heard in the matter. 3. Rule is made absolute in the above terms. Petition disposed of accordingly. No order as to costs. (A.P. Deshpande, J.) (A.P. Deshpande, J.) (A.P. Deshpande, J.)