CHANDRABHAGA DAMODAR VANJARI Vs. PRIYANKA MURLIDHAR NAVAHTE

JUDGEMENT

(1.) Heard. Rule returnable forthwith with the consent of parties.

(2.) The petitioner has approached to this Court invoking the jurisdiction of this Court under Article 226 of the Constitution of India.

(3.) Special Civil Suit No. 209 of 1994 was filed in the Court of Civil Judge, Senior Division, Nashik. In the said suit, there were three defendants, Defendant No.1 was minor represented by his next friend - mother, who was defendant no.2 in the said suit. Apart from this, Balasaheb Sukdev Pakhale was also a party as defendant no.3, who is respondent no.2 in the present matter. It appears that original defendant no.2 - Kamal died during the pendency of the suit and since she was defendant no.2 and next friend of defendant no.1, the Civil Judge, Senior Division, Nashik passed order that the suit is abatted as against the defendant nos. 1 & 2. Validity of the said order is not subject matter of the present petition. However, the fact remains that the suit survives as against the original defendant no.3 who was purchaser of the said property. It was fixed for hearing on 17.12.1996. On the said date, plaintiff - petitioner herein was absent and therefore application Exhibit 30 was submitted for adjournment supported by a medical certificate. Inspite of this, the said adjournment application was rejected by the Civil Judge, Senior Division, Nashik, and since the said application was rejected and the plaintiff was absent, the Civil Judge, Senior Division wanted to proceed with the suit, but under the circumstances, the suit was dismissed for want of prosecution. On the same day, application Exhibit 31 was filed by Advocate of the plaintiff for restoration of the suit. It is interesting to note that on that day it appears that defendant and defendant s counsel, both were absent. Therefore, it became necessary for the Court to issue notice of the said application to the defendants. On 16.9.1997 application Exhibit 31 was on record and service report was awaited. It further appears that the defendant was not served, therefore he did not appear. But, however having found that the plaintiff and his counsel absent, Court dismissed the suit for non prosecution and/or default. As against this order, the Miscellaneous Civil Appeal bearing No. 235 of 1997 was preferred. Said appeal was dismissed on 17th October 2000. Therefore, being aggrieved and dissatisfied by these orders passed by the Courts below, the plaintiff- petitioner has approached to this Court invoking the jurisdiction of this Court under Article 226 of the Constitution of India, as stated earlier.