HARIBA TATYABA MORE Vs. DADA EKHATNATH MORE

JUDGEMENT

(1.) We answer the reference as framed vide order dated 10th February, 2010 in Writ Petition No. 896 of 2007.

(2.) The Writ Petition was filed because Suit filed by the Petitioners was dismissed by the learned Trial Judge on 3 rd May, 2002 against Defendant Nos.5 and 6 on account of the failure of the Petitioners to apply for fresh summons to be served upon the said Defendants. The Suit against said Defendants was dismissed in exercise of power under Sub-Rule (1) of Rule 5 of . Application filed by the Petitioners before the learned Trial Judge for setting aside the order of dismissal dated 3rd May, 2002 was rejected vide order dated 16th August, 2003; with the reasoning that in view of Sub- Rule (2) of Rule 5 of Order IX of the Code the only remedy of the Petitioners was to bring a fresh Suit, a reasoning which finds sustenance from a decision of a learned Single Judge of this Court reported as 2000 (4) Mh.L.J. 498 Vishwanath Satwaji Gaikwad vs. Laxman Abaji Kavale & Ors.

(3.) We have heard learned Counsel for the parties.