Laxmibai Mohan Pagore Vs Ramesh Mohan Pagore and Others — Bombay HC (2024) — LawSathi Research

Laxmibai Mohan Pagore Vs Ramesh Mohan Pagore and Others — Bombay HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Petition allowed in terms of prayer clause ‘B’, conditional on payment of Rs.5,000/- cost to the contesting respondent no.3 (payment being the precondition for restoration of R.C.S. No. 1016/2007); Trial Court directed to decide the proceeding within one month, parties to appear on 6th January, 2025.

Issue for consideration

Whether the writ petition challenging the rejection (on 22.10.2021, in Civil M.A. No. 290/2018) of the application for restoration of R.C.S. No. 1016/2007 should be allowed in the interest of justice, given that the petitioner is an illiterate lady who was unaware of the dismissal of her suit.

Court's answer

Taking note that the petitioner is illiterate, the petition is allowed in the interest of justice, however subject to cost, the cost being determined at Rs.5,000/-.

Ratio / Principle

Payment of the assessed cost to the contesting respondent no.3 is a precondition for restoration of the original suit; accordingly the petition is allowed in terms of prayer clause ‘B’ subject to payment of cost.

Key takeaways

The Trial Court is directed to decide the pending proceeding within a period of one month, with the parties directed to appear on 6th January, 2025.ratio¶5

Detailed headnote1 paragraphs

High Court of Judicature at Bombay, Aurangabad Bench (R. M. Joshi, J.; 05.12.2024): Partition suit R.C.S. No. 1016/2007, pursued through a power of attorney holder who allegedly never informed the petitioner, stood dismissed; the application for its restoration (Civil M.A. No. 290/2018) was rejected on 22.10.2021. The petitioner, an illiterate lady (her restoration affidavit bearing only a thumb impression), sought reversal of that rejection. Finding restoration warranted in the interest of justice, the Court allowed the petition in terms of prayer clause ‘B’, making payment of Rs.5,000/- cost to the contesting respondent no.3 a precondition for restoration of the suit, and directed the Trial Court to decide the proceeding within one month, fixing appearances for 06.01.2025.

2024:BHC-AUG:28777

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

937 WRIT PETITION NO. 10115 OF 2023

LAXMIBAI MOHAN PAGORE VERSUS

RAMESH MOHAN PAGORE AND OTHERS

Mr. M. R. Wagh, Advocate for the petitioner Mr. A. R. Vaidya, Advocate for respondent no.3

CORAM : R. M. JOSHI, J. DATE : 5^th DECEMBER, 2024

PER COURT :-

This petition takes exception to order dated 22^nd October, 2021 passed in Civil M.A. No. 290/2018, whereby the application for restoration of R.C.S. No. 1016/2007 came to be rejected.

Learned counsel for the petitioner submits that the suit is for partition and since it was filed through power of attorney holder, the petitioner personally did not know about the status of the said proceeding. It is also claims that the power of attorney holder did not inform to the petitioner about the same and this has resulted into dismissal of the suit. As far as dismissal of restoration application is concerned, it is claimed that the petitioner is illiterate lady and hence, in the interest of justice the order be set aside.

Learned counsel for respondent no.3 vehemently opposed

1 of 2

937.wp10115.23.odt

the petition. It is his contention that there is reason/explanation given for non appearance and as such it is not a fit case for allowing the petition.

Petitioner is a lady. The suit is for partition. As such all the parties plaintiff as well defendant have interest therein. The petitioner had filed affidavit before the learned Trial Court for seeking restoration of the suit. The said affidavit indicates that the same is not signed but thumb impression is made thereon which shows that she is illiterate. Hence, in the interest of justice, petition stands allowed however, subject to cost. The cost is determined at Rs.5,000/-. Cost be paid to the present contesting respondent no.3. Payment of cost is precondition for restoration of the original suit. In view of this, petition is allowed in terms of prayer clause ‘B’ subject to payment of cost.

Learned Trial Court is directed to decide the said proceeding within a period of one month. Parties are directed to appear on 6^th January, 2025 before the Trial Court.

ssp

2 of 2

937.wp10115.23.odt