Allowed

Mahendra Shivanand Dasarwar v. Vaidik Seva Ashram through Its Chairman

Bombay HC25 Nov 2011WP/298/2005

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, quashing the order dismissing the applicant's civil suit for default. Factors including pending revision proceedings and parental illness negated negligence, restoring the suit to court.

What did the court decide?

Impugned orders quashed; Suit R.C.S. No. 909 of 1993 restored on payment of Rs. 5,000 costs within four weeks; parties directed to appear on 4/1/2012.

Mahendra Shivanand Dasarwar Vs Vaidik Seva… — Civil Procedure and Limitation | Bombay HC (2011)

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1 WP 298.2005 - [ J ]

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 298 OF 2005

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Mahendra S/o Shivanand Dasarwar Age : 35 Yrs., Occ. Agril. & Business, R/o : Hingoli Gate, At, Post, Dist. : Nanded. .... PETITIONER

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V E R S U S

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Vaidik Seva Ashram Nanded, through its present Chairman, R/o : Shivaji Nagar, Nanded.

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Ravindra S/o Shivanand Dasarwar Age : 38 Yrs., Occ. Private Medical Practice, R/o : Town Market Society, Opp. Vidyut Bhavan, At, Post & Dist. Nanded. ..... RESPONDENTS

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Mr. R.P.Dhase, Advocate for the Petitioner. Mr. V.J.Dixit, Sr. Counsel instructed by Mr. V.V. Deshmukh, Advocate for Resp. No. 1.

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CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 25/11/2011.

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2 WP 298.2005 - [ J ]

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ORAL JUDGMENT :

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Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective counsel, taken up for final hearing.

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The petitioner is the original plaintiff. The petitioner filed R.C.S. No. 909 of 1993 for declaration and injunction. The said Suit was kept for evidence. On 28/2/1995, the petitioner did not remain present for adducing the evidence, as such the said Suit was dismissed for default on the said date. The petitioner on 10/3/1995 filed an application for restoration bearing M.A.R.J.I. No. 35 of 1995. The said restoration petition came to be rejected vide Order dated 22/7/1999. Against the said order, the petitioner preferred Misc. Civil Appeal. The said Appeal was allowed. Aggrieved thereby, the present respondent preferred Civil Revision Application before this Court. The said Civil Revision Application was allowed on the ground that the Misc. Civil Appeal was not maintainable. Thereafter, the original plaintiff has challenged the Order dated 22/7/1999 dismissing the restoration application i.e. M.A.R.J.I. No. 35 of 1995 in the present Writ Petition.

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Heard the learned counsel for the respective parties.

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With the assistance of the learned counsel, I have gone

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3 WP 298.2005 - [ J ]

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through the application and the order.

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The learned Sr. Counsel for the respondent supported the Judgment on the count that no sufficient cause is stated. There was no impediment for the petitioner to remain absent to adduce evidence. The right has been crystallized in favour of the respondent by way of dismissal of the Suit. The petitioner was negligent in prosecuting the cause and the petitioner can not get premium over his negligence.

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It would be seen that during the relevant period when the Suit was posted for evidence, the Revision proceedings were pending before this Court against the order passed on temporary injunction application. During the relevant period also, it is brought on record that the father of the petitioner had suffered paralytic attack, as is evident from the contents of the application. The petitioner was not to gain by remaining absent. It was the substantive Suit of the petitioner for declaration of his rights. The Order dated 28/02/1995 would show that the plaintiff as well as defendants were absent, so also their respective counsels were also absent. Even earlier the Suit proceeded ‘ without W.S. ’ of the defendants.

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This would also show that the parties were busy in

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4 WP 298.2005 - [ J ]

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prosecuting the Civil Revision Application pending before this Court. The absence of the petitioner can not be said to be deliberate or intentional. More over, the petitioner was not to gain anything by remaining absent.

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The Courts will have to take the justice oriented approach and

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would see that the cause for substantial justice is sub-served.

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In view of the above, I am inclined to allow the Writ Petition by quashing and setting aside the impugned orders.

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Rule is made absolute in terms of prayer clause ‘ A ’ on condition that the petitioner pays cost of Rs. 5,000/- [ Rupees Five Thousand only ] to the respondent no. 1, who is contesting the present Petition, within the period of four ( 4 ) weeks from today i.e. 23/12/2011. In case the cost is deposited as directed above, the Suit bearing R.C.S. No. 909 of 1993 shall stand restored and the parties shall appear in the said Suit on 4/1/2012. The respondent no. 1 shall have opportunity to file Written Statement if the same is not filed. The trial Court shall thereafter dispose of the Suit expeditiously.

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KNP/WP 298.2005 - [ J ]

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[ S.V. GANGAPURWALA,J. ]

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5 WP 298.2005 - [ J ]

Mahendra Shivanand Dasarwar v. Vaidik Seva Ashram through Its Chairman

Case brief

What is this about?

What did the court decide?

Mahendra Shivanand Dasarwar v. Vaidik Seva Ashram through Its Chairman

Case brief

What is this about?

What did the court decide?

What the court decided

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