The Bombay High Court recently allowed a writ petition filed by one Kamala Bharwani (since deceased) in 1998 wherein orders of the trial court dismissing a suit filed by her in 1978 were challenged. The trial court had dismissed the said suit for want of prosecution and further rejected the petitioner's application for restoration of the suit.
Justice AS Gadkari concluded that the trial judge had committed an error in not allowing the said application for restoration of suit filed by the petitioner's advocate for the restoration of the Suit and quashed the impugned orders dated June 26, 1998.
The original suit was filed by the petitioner seeking eviction of respondents from the premises owned by her on the ground of bona- fide requirement and other related grounds. The petitioner's daughter was her Constituted Attorney and her examination-in-chief was recorded on January 12, 1989 and on February 28, 1989. The suit was thereafter, adjourned from time to time for the reasons mentioned in the roznama of the said case.
On June 26, 1998, the petitioner and/or her advocate did not remain present and therefore, the trial court dismissed the suit for want of prosecution at 11:15 am. Trial judge observed in the order that the plaintiff and her advocate are absent. Defendant number 2 and his advocate were also absent. It was further noted that the last time evidence of plaintiff was recorded was on February 28, 1989. Therefore, for want of prosecution, the suit was dismissed at 11:15 am.
Petitioner's advocate filed an application for restoration of the said suit at about 1 pm. Thereafter, the trial judge rejected the said application by an elaborate order at 3 pm.
Advocate Rajesh Datar appeared on behalf of the petitioners and Advocate Pallavi Dabholkar for the respondents.
"Perusal of the impugned Orders would indicate that, what was weighed in the mind of the learned Trial Judge is that, the Suit is pending since 1978 and after the evidence was recorded on the aforestated two dates, there was no progress in the suit and therefore, the plaintiff is trying to procrastinate the said suit without any reasonable excuse."
However, the bench also noted that in the application for restoration of suit filed by the petitioner's advocate, it has been clearly mentioned that, the plaintiff left her house on that day at 9 am to lead evidence, against medical advice but during her travel to the Court, her health deteriorated further and she was compelled to return to her house. Petitioner's advocate had accompanied her then.
"It is thus clear that, on the date of dismissal of the Suit, the learned Advocate for the Petitioners could not attend the Court at 11 am for the aforesaid reason. The record further clearly indicates that, the learned Advocate for the Petitioners subsequently appeared before the Court at about 1 pm and filed an application for restoration of the Suit.
Thus, on 26th June 1998, the Advocate for the Petitioners was diligent enough in filing an Application for restoration of the said Suit and therefore, the findings recorded by the Trial Court regarding delay in conducting the said Suit were not necessary for deciding the application for restoration of the said Suit.
In view of the above, this Court is of the considered view that the Trial Court has committed an error in not allowing the said Application filed by the Advocate for the Petitioners for the restoration of the Suit."
Thus, the two orders dated June 26, 1998 were quashed and set aside and the suit was restored. Trial court has now been directed "to make an endeavour to conclude the hearing of the said suit within a period of one year" from the date of judgment.
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