JAI VIJAY ENTERPRISES AMRAVATI Vs. ASHISH ENTERPRISES AMRAVATI

JUDGEMENT

(1.) This writ petition in directed against the order, dated 17th September, 1984, passed by the Sub Divisional Officer, Amravati, fixed the application before him for evidence of parties, without deciding the petitioners preliminary objections that respondent No. 1s application could not be heard unless the application, which had been dismissed for default, was restored.

(2.) The petitioner is a partnership firm registered under the Indian Partnership Act and had entered into an agreement on 22nd October, 1982, for selling three survey numbers, admeasuring 11 acres and 13 gunthas situated at Rahatgaon, to the respondent No. 1 for Rs. 1,81,200/-. Respondent No. 1 filed an application before respondent No. 2, the Sub Divisional Officer, under section 89 of the Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the BTAL Act) for permission to purchase the land. The petitioner filed a written statement resisting the application. On 6-4-1984, respondent No. 1s application was dismissed by respondent No. 2 for default of his appearance and, so, respondent No. 1 filed an application for restoration of that application on 11-5-1984, of which notice was issued to the petitioner. When the case came up on 13-6-1984 respondent No. 2 allowed an application for amendment presented by respondent No. 1, without deciding the application for restoration. On one of the adjourned dates, i.e. on 27-7-1984, respondent No. 2 made an order dismissing the case for default, and presumably the order had effect of dismissing the application for restoration. On the same day, the earlier order was scored out and the petitioner was granted time to file his say. On 1-9-1984, the application for amendment was allowed and the case was fixed for evidence of parties. On 17-9-1984, the petitioner raised a preliminary objection, urging that the unless the application under section 89 of the BTAL Act, which had been dismissed, was restored, evidence of parties on merits could not be recorded, but the case came to be fixed for evidence of parties for 17-9-1984. This action of the respondent No. 2 is being challenged by the petitioner.

(3.) The submission of Ms. Bhamburkar, the learned Counsel for the petitioner, is that the application for amendment and the original application under section 89 of the BTAL Act could not have been allowed by respondent No. 2, unless the application for restoration was allowed, and the dismissal for default was set aside.