KEDARMAL JAINARAYAN Vs. KANYALAL LAXMINARAYAN

JUDGEMENT

(1.) THIS petition arises from the order dated 5-8-1995 passed by the trial Court by which the trial Court dismissed the suit for want of prosecution.

(2.) THE facts, in brief, relevant for the decision are that the petitioner herein instituted the suit for partition being Regular Civil Suit No. 51 of 1964 on 3rd october 1964. The preliminary decree in the suit defining the shares of the parties in relation to the property in question was drawn on 18-1-1969. Being aggrieved, First appeal No. 276 of 1969 was filed by the respondents herein. The said decree was stayed by this Court by an order dated 24-7-1969. The said order of stay was in civil Application No. 155 of 1969. The petitioner herein preferred Cross Objections in the said appeal and the same were filed on 29-9-1969. Pursuant to the order passed during pendency of the appeal records were sent to the trial Court for the purpose of continuation of the proceedings as regards appointment of Commissioner was concerned. Thereupon the petitioner on 4-1-1971 filed an application before the trial Court being Exhibit 367 for appointment of commissioner. The same was allowed and one Advocate Bhusare was appointed as Commissioner for the purpose of demarcation of the property by metes and bounds and also for taking accounts. Advocate Bhusare submitted his first report on 6-3-1972 and second report on 30th October 1972. The respondent no. 1 herein filed objections to the said report on 6th December 1972 before the trial Court and the entire records were then sent to the High Court. Thereafter, the matter in the said first appeal No. 276 of 1969 came to be compromised and the compromise decree was drawn on 1-4-1977. Consequendy the matter was remitted to the trial Court for further proceedings in terms of the compromise decree passed in the said appeal. On 3-4-1982 the Commissioner was examined before the trial Court and thereafter after hearing the parties the trial Court passed an order accepting the proposed partition as suggested by the Commissioner with further direction to start the construction in the property at the costs of the respondent No. 1. The said order was passed on 10th june 1982.

(3.) ON 14-7-1995 the advocate for the petitioner sent a letter to the petitioner informing him that the matter was fixed for hearing on 5-8-1995 and that the petitioner was required to remain present in the Court on that date for giving necessary instructions to his advocate. Meanwhile on 24th July 1995 the mother of the petitioner expired. When the matter came up for hearing on 5-8-1995 before the trial court the advocate for the petitioner filed an application for withdrawal of his appearance on behalf of the petitioner. Simultaneously, the petitioner filed an application for adjournment to enable him to engage another lawyer in the matter. The said application was rejected by the trial Court and thereafter the impugned order came to be passed.