MUNURAJ CHANDRAKANT BABBAR Vs. GURUDAS LAXMAN CHATI

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India exception to the order passed by the learned 4th Joint Civil Judge, Senior Division, Solapur dated 5-8-1994 in Reg. civil Suit No.1238 of 1977.

(2.) The impugned order indicates two reasons for dismissing the suit for non-prosecution. The first reason mentioned is that the plaintiff and his counsel remained absent since long period. The second reason is that no steps have been taken by the plaintiff to issue summons in respect of bringing legal representatives of deceased defendant No.1 on record. Mr. Godbole contends that assuming that the plaintiff failed to take necessary steps for bringing legal representatives of deceased defendant No.1 on record, nonetheless, the suit ought to have proceeded against defendant No.2 and the Court was not justified in dismissing the suit for want of prosecution as against Defendant No.2. This argument clearly overlooks the fact that the Court has dismissed the suit firstly because neither the plaintiff nor his counsel has remained present or pursued the matter before the trial court since long. No ground has been urged in the writ petition to assail the correctness of the said observation made by the trial Court. Mr. Godbole wanted to place reliance on the roznama of the trial court, which again is only up to July, 1993, whereas, the impugned order has been passed in August, 1994. In the circumstances, there is no material placed before this court to indicate that the suit was listed for hearing on how many occasions during the relevant period. In any case, since the said finding recorded by the trial Court has not been assailed in the present writ petition it is not necessary to address on this aspect of the matter in greater detail. The appropriate course in such a situation for the plaintiff ought to be to move the trial court for restoring the suit and not assail it by way of writ petition under Article 227. Be that as it may, I find no reason to interfere with the order which is under challenge. In my view, there is no infirmity in the conclusion reached by the trial court. Moreover, the suit pertains to the year 1977 and the claim for recovery is only Rs. 5,800/- Even for this reason no interference is warranted. In the circumstances this writ petition fails and is dismissed. No order as to costs.