Shri Nanu Ganpati Patil And ORS. v. Collector Of Kolhapur And ANR.

Urmila Ingale

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4307 OF 2016 Shri Nanu Ganpati Patil and ors.

.. Petitioners Vs.

Collector of Kolhapur and anr.

.. Respondents Mr.Chetan G.Patil, for the Petitioners.

Mr.S.H.Kankal, AGP for State.

CORAM : M.S.KARNIK, J.

02nd FEBRUARY, 2017 P.C. :

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The challenge in this petition is to the order dated 01/01/2016 passed by the Joint Civil Judge, Senior Division, Kolhapur below Exhibit 19(A) in Civil Misc. Application No. 96 of 2010. The petitioners - original plaintiffs had filed Suit against the respondents for decree of mandatory injunction. It appears that on 04/02/2010, when the Suit was fixed for hearing, the plaintiffs were not present and by the order dated 04/02/2010, learned trial Judge was pleased to dismiss the Suit for default.

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2.

The plaintiffs filed application on 23/03/2010 for restoration of the Suit. According to the petitioners, they reside in remote hilly area which is far away from the City limits and moreover, their financial condition is also not very sound. The petitioners were not aware of the date fixed due to some communication gap and therefore they could not remain present before the trial Court on 04/02/2010. The petitioners had also filed affidavit of examination-in-chief in the said Misc. Civil Application No. 96 of 2010. The respondents, however, did not lead any evidence, therefore on 03/10/2015, the trial Court was pleased to close the evidence of the respondents. The learned trial Judge by the impugned order dated 01/01/2016 rejected the application filed by the petitioners for restoration. According to the learned trial Judge, no satisfactory explanation is forthcoming from the petitioners for their absence on 04/02/2010 and therefore, the application for restoration came to be rejected by the trial Judge.

3.

Learned AGP opposes the present Petition and 2/3

supported the order passed by the trial Judge. In my opinion, in the interest of justice, Civil Misc. Application No. 96 of 2010 passed by the petitioners for restoration of the Suit deserves to be allowed. There is no dispute that the petitioners are the residents of remote hilly area and are not of sound financial condition. According to the petitioners, due to some communication gap, they were not informed the next date of hearing i.e. 04/02/2010. It is nobody's case that the petitioners's - original plaintiffs were continuously remaining absent on the earlier occasions. In this view of the matter and in the interest of justice, present Petition is allowed in terms of prayer clause (a). The Petition is accordingly disposed of. (M.S.KARNIK, J.) 3/3