ARUN KRUSHNAJI PAWAR Vs. MARIYAMBI AYUB MESMAN

JUDGEMENT

(1.) Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of Mr. Athalye, learned counsel for the Petitioner, and Mr. Talkute, learned counsel for the Respondents.

(2.) By this Petition, filed under Article 227 of the Constitution of India, the Petitioner is challenging the order dated 21 st November 2017 passed by the Joint Civil Judge, Senior Division, Satara, thereby dismissing the Civil Miscellaneous Application No.9 of 2017. The said application was filed by the present Petitioner for condonation of delay of 807 days in filing the application for restoration of the Restoration Application.

(3.) The case of the Petitioner is that, the Respondents herein have filed a Special Civil Suit bearing No.140 of 2007 against him and his two brothers for recovery of possession of the suit property on the ground of non-payment of rent and bonafide need. Petitioner was Defendant No.3 in the said Suit. The Suit proceeded ex-parte, as none of the Defendants appeared. According to the Petitioner, on the assurance given by his brothers that they would make proper representation in the trial and his presence was not necessary, he remained unaware of the proceedings under bonafide impression. However, as the Suit came to be decided ex- parte by the Judgment and Order dated 6th October 2008, the Miscellaneous Civil Application No.11 of 2009 was moved by the Petitioner and his brothers for setting aside the ex-parte judgment. During pendency of the said application, in pursuance of the family arrangement between him and his brothers, the suit property came to his share. However, since 2010, Petitioner also started suffering from serious ailments like heart trouble, kidney stone, which put restrictions on his movements. Further he also suffered from forgetfulness, the decease of parkinson and various other mental ailments like the anxiety disorder, as a result of which, he could not attend hearing of Miscellaneous Civil Application No.11 of 2009. Hence, it came to be dismissed for default on 29th October 2014. Petitioner came to know about the same only when the Bailiff came to execute possession warrant. Immediately thereafter, Petitioner contacted his brothers and then filed the Civil Miscellaneous Application No.9 of 2017 before the Trial Court for condonation of delay of 807 days in filing the application for restoring the Restoration Application.