Shri. Basavraj Shantappa Pyati v. Sou. Sheetal Basavraj Pyati

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4498 OF 2017 Basavraj Shantappa Pyati ...

Petitioner.

V/s.

Sheetal Basavraj Pyati ...

Respondent.

• Mr.S.B. Patil i/b. Mr.Sandeep S. Salunkhe for the Petitioner. CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATED : 4th OCTOBER, 2017.

P.C. :- 1] This Writ Petition is preferred challenging the judgment and order dated 04/08/2012 passed by the 2nd Jt.Civil Judge Senior Division, Solapur thereby dismissing Civil Miscellaneous Application No.85 of 2011 filed by the Petitioner for restoration of his petition bearing H.M.P. No.122 of 2007. The said H.M.P. No.122 of 2007 was filed by the Petitioner for divorce on ground of cruelty. The said petition was fixed for hearing on 15/06/2009, however on that day as he was absent, the Petition came to be dismissed for default. Therefore, he has filed the application for restoration on 28/02/2011. 1/3

osk 904-wp-4498-2017.odt The Respondent resisted the said application contending inter alia that the Petitioner remained absent after filing of affidavit of evidence and after order of interim maintenance, the Petitioner neither deposited the amount of maintenance nor appeared in the Court for cross-examination on several days. Therefore, the petition came to be dismissed for want of prosecution on 15/06/2009. 2] Perusal of the said order dated 15/06/2009 clearly goes to show that the Petitioner has remained absent. Even the facts presented before the Court reveal that, no application for adjournment was filed and it was as good as the Petitioner has abandoned the said matter.

3] Now though the Petitioner contends that on 15/06/2009 he was ill and unable to attend the Court, no Medical Certificate to that effect is produced on record of the trial Court or before this Court also. The averments made in the application also go to reveal that he was attending the Court in Revision Application which he has filed against the order of interim maintenance. Thus, if the trial Court has held that the Petitioner has purposely avoided to remain present before it and his conduct was just to avoid the payment of maintenance; no fault can be found in the said order so 2/3

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4] The Writ Petition holds no merits, hence stands dismissed.

(DR. SHALINI PHANSALKAR-JOSHI, J.) 3/3