The petitioners challenged an order restoring an abated suit by condoning delay. The Court held that a composite application for both prayers is valid and found no reason to interfere, dismissing the writ petition.
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9753.24WP
2024:BHC-AUG:24723
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
913 WRIT PETITION NO. 9753 OF 2024
ABDUL LATIFKHA BAKHTAWARKHAN PATHAN THROUGH LRS SURAYYABI LATIFKHAN PATHAN AND OTHERS
VERSUS
MEHUL DILIP SARAF AND OTHERS
Advocate for the petitioners : Mr.S.P.Pandit Advocate for Respondent no.1 : Mr.S.P.Shah
CORAM : ARUN R. PEDNEKER, J. DATE : 08.10.2024
P.C. :
1] By the present petition, the petitioners are challenging the order dated 28.06.2024 passed by the Joint Civil Judge Senior Division, Shahada, below Exh.1 in Civil Misc.Application No.11/2023 whereby the trial Court has allowed the application.
2] The prayer made in the application at Exh. 1 is noted below :
The prayer is made to set aside the
abatement order by condoning the delay of 96
days.
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9753.24WP
In the instant case, the suit is disposed of as abated. Application was filed for restoration of Regular Civil Suit No.54/2012 with an prayer for condonation of delay and the same is allowed by the impugned order dated 28.06.2024.
3] It is the contention of the learned counsel for the petitioners that the respondents ought to have filed two separate applications, namely, one application for condonation of delay and another application for setting aside the abatement order. The learned counsel further submits that sufficient opportunity was not given to the petitioners to defend the prayer made in application for setting aside abatement before passing the impugned order.
4] On perusal of the application at Exh. 1, it appears that, the prayer for condonation of delay and prayer for setting aside the abatement, are incorporated in one application. The learned counsel for the petitioner is not able to satisfy me as to what grounds the abatement order cannot be set aside once the delay is condoned. Since the prayer is composite one and the order is reasonable, I do not see any reason to interfere with the impugned order. The present Writ Petition is accordingly dismissed.
[ARUN R. PEDNEKER] JUDGE
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9753.24WP
DDC
2 issues framed by the court
Whether a composite application for condonation of delay and setting aside abatement order is maintainable.
Whether sufficient opportunity was denied to the petitioners before passing the impugned order.
Abdul Latifkhan Bakhtawarkhan Pathan Through LRs Surayyabi Latifkhan Pathan and Others
Mehul Dilip Saraf and Others
Arun R. Pedneker
As recorded by the court registry
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