Allowed

Ganpati Rangnath Khose v. Sarangdhar Bapurao Khose and Another

Bombay HC19 Mar 2013WP/1215/2013

Case brief

AI extract

What is this about?

Writ petition challenging rejection of readmission application. High Court quashed the order, allowing restoration of appeal on payment of costs, acknowledging the advocate's absence was for a marriage ceremony.

What did the court decide?

Misc.Civil Application No.297/2011 allowed on condition petitioner pays Rs.5,000/- costs to respondent; Regular Civil Appeal No.128/2004 restored upon deposit.

Ganpati Rangnath Khose Vs Sarangdhar Bapurao… — Civil Procedure and Limitation | Bombay HC (2013)

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UNREPORTED

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.1215 OF 2013.

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Ganpati S/o Rangnath Khose,
Age 72 years, Occ.Agri.,
R/o Izora, Tq.Bhoom,
New Taluka Washi,
Dist.Osmanabad.

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... Petitioner.

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Versus

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1. Sarangdhar Bapurao Khose,
Age 67 years, Occ.Agri.,
R/o Izora, Tq.Bhoom,
New Taluka Washi,
Dist.Osmanabad.

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2. Prayagabai W/o Sarangdhar
Khose, Age 63 years, Occ.
Agri., R/o Izora, Tq. Bhoom,
New Taluka Washi,
Dist.Osmanabad.

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... Respondents.

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Mr.N.K.Kakade, advocate for the Petitioner.
Mr.S.A.Dhengle, advocate for the Respondent No.1

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 19.03.2013.

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ORAL JUDGMENT :

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1.Heard.

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2.Rule. Rule returnable forthwith. With
the consent of the parties, the petition is taken
up for final hearing.

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3.The petitioner/original plaintiff has
filed suit for possession and declaration. The
said suit is dismissed. Aggrieved thereby, the
plaintiff filed appeal before the District Court.
The appeal came to be dismissed on 21.11.2011,
purportedly U/o 41 Rule 17 of the C.P.C. The
petitioner filed an application for readmission
of appeal purportedly U/o 41 Rule 19 of the
C.P.C. The said application is rejected.
Aggrieved thereby, the present petition.

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4.Mr.Kakade, learned counsel for the
petitioner submits that on 21.11.2011, the matter
was fixed for final arguments. On the said date,
the advocate of the present petitioner had gone
to Dharmabad to attend the marriage ceremony of
the son of near relative and in that

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circumstance, the advocate could not appear and
the matter was dismissed for default. The said
absence was not intentional one. According to the
learned counsel, the suit is a substantive suit
with regard to immovable property and the
substantive right of appeal may not be denied on
technical grounds.

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5.Mr.Dhengle, learned counsel for the
Respondent No.l submits that the lower appellate
Court has properly passed the order. After last
chance was granted, two more opportunities were
granted to the present petitioner, still, the
same were not availed and the matter was
adjourned. Ample opportunity was granted to the
petitioner, there is no error apparent on the
face of record and this Court may not exercise
the jurisdiction under Article 227 of the
Constitution of India.

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6.With the assistance of the leaned
counsel, I have gone through the order. The
appeal is a substantive right of a litigant. The
suit appears to be for declaration and possession

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in respect of immovable property. The appeal came
to be dismissed on 21.11.2011 and within a month,
the application was filed for restoration. The
appeal is normally argued by advocate and the
presence of a litigant on the said date of
argument is not necessary. The reason is given
that on 21.11.2011, the advocate of the
petitioner had to go out station to attend the
marriage ceremony of his near relative. There is
no reason to disbelieve the same.

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7.In light of the above, I am inclined to
grant one more opportunity to the petitioner.
However, the petitioner also deserves to be mulct
with costs.

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8.In the result, I pass the following

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order :

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(a)The impugned order is quashed and set
aside. Misc.Civil Application No.297/2011 is
allowed on condition that the petitioner pays
costs of Rs.5,000/- (Rupees five thousand) to the
present Respondent. The said cost be deposited

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by the petitioner before the lower appellate
Court within four (4) weeks from today. In case
the cost as directed above is deposited then the
Regular Civil Appeal No.128/2004 be restored to
its original position. In case, the cost as
directed above is deposited, the Respondents are
allowed to withdraw the same.

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(b)Rule accordingly made absolute.

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 (S.V.GANGAPURWALA,J.)

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asp/office/wp1215.13

Ganpati Rangnath Khose v. Sarangdhar Bapurao Khose and Another

Case brief

What is this about?

What did the court decide?

Ganpati Rangnath Khose v. Sarangdhar Bapurao Khose and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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