1 wp183.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 183 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. V.D. Sapkal, Advocate for petitioners. Mr. S.K. Tambe, A.G.P. for respondent no. 1. 1. Heard Advocate Mr. Sapkal for petitioners and learned A.G.P. Mr. Tambe for respondent no.1. This Court has issued notice for final disposal on 13.01.2011. Nobody appeared for respondent no.2 though served on 28.02.2011 and hence, the matter came to be adjourned to 10th March, 2011. On that day, again there was no appearance for respondent no.2 and hence, on last date, the matter came to be adjourned today. 2. Short contention of Advocate Mr. Sapkal is, the respondent no.1 has under the guise of taking possession of land acquired, taken possession of excess land. This action was assailed by filing Regular Civil Suit no. 62 of 2001 and the petitioner no.2-Parashram (since deceased) 2 wp183.11 was looking after that litigation in his capacity as Karta. The petitioners are illiterate. Parashram expired and thereafter the litigation went unattended. After the orders of High Court in revenue matter on 3rd December, 2009, filing of Civil Suit came to the knowledge of petitioners and hence, they moved application under Order 9 Rule 4 of the Civil Procedure Code for restoration of Civil Suit. In that proceeding, the evidence has been led on affidavit to substantiate the reasons for absence and also for seeking condonation of delay. Court of Joint Civil Judge, Senior Division, Aurangabad has in impugned order overlooked those reasons and that evidence. 3. After hearing respective Counsel, I find that story pressed into service for not appearing in Regular Civil Suit no. 62 of 2001 has not been looked into in the impugned order. Whether that story has been substantiated or then it appears to be incorrect was the finding necessary for recording conclusion about justness and sufficiency of the reason for condonation of delay. That finding is missing in the impugned order. The impugned order dated 22.11.2010 is therefore quashed and set aside. Proceedings in M.A.R.J.I. no. 130/2010 are restored back to the file of that Court for taking fresh decision in the light of evidence adduced before it to find out whether there exists just and sufficient ground for condoning the delay. 3 wp183.11 4. Petition is allowed accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE. 24.03.2011 gas/wp183.11