JAYADABEGUM SALAUDDIN KAZI DEAD LRS SALAUDDIN NAZEERUDDIN KAZI & Ors. v. ISUFODDIN SHAMSHODDIN KHATIB & Ors.

Heard learned counsel for the parties present before the Court.

#2. Petitioner had filed R.C.S. No.331 of 1999 in the Court of learned Civil Judge, Junior Division, Kaij, Taluka Kaij, District Beed on 5th November, 1999 against Respondents/ defendants seeking perpetual injunction.

#3. In response to suit summons, Respondents/ defendants entered appearance -:(2):- WP7166-11 and filed their pleadings.

#4. There is no dispute among learned counsel present before the court that Respondent No.5 died. His legal heirs are served - absent.

#5. R.C.S. NO.331 of 1999 was listed for final hearing before the trial Court. The original plaintiffs, even though 4 in number, were not present before the Court on the appointed day for hearing. Their Advocate was also not present. R.C.S. No. 331 of 1999, therefore, was dismissed in default by the trial Court on 20th January,

#2009. After dismissal of R.C.S. No.331 of 1999 present petitioners had filed M.C.A. No.16 of 2009 in the Court of learned C.J.J.D., Kaij, District Beed on 27th November, 2009. This Miscellaneous Civil Application No.16 of 2009 was for restoration of R.C.S. No.331 of 1999 which was dismissed in default. This M.C.A. No. 16 of 2009 was listed for hearing before the trial Court on 6th November, 2009. On -:(3):- WP7166-11 that day also petitioners/ applicants and their Advocate were not present before the Court. Said application was dismissed by the order passed by learned 2nd Jt. C.J.J.D., Kaij on 6th November, 2009.

#6. After dismissal of M.C.A. No.16 of 2009 petitioners had filed Misc. Civil Application No.78 of 2009 in the Court of learned C.J.J.D., Kaij. Said M.C.A. No.78 of 2009 was listed for hearing before the trial Court. After hearing the parties, the trial Court dismissed the said M.C.A. No.78 of 2009 by the order passed on 29th June, 2011. While dismissing M.C.A. No.78 of 2009 the trial Court recorded a finding that Misc. Civil Appln. No.78 of 2009 is maintainable, however, learned Judge was of the opinion that just and sufficient ground is not mentioned in the application. ON this ground, said M.C.A. No.78 of 2009 is dismissed with costs. It is this judgment and order challenged by the present petitioners in this writ petition. -:(4):- WP7166-11

#7. After hearing learned counsel for the parties present before the Court, in my view this writ petition can be allowed. I have considered the submission of learned counsel for the Petitioners that Petitioner No.1 is old aged person and there is just and sufficient reason for the petitioners and their Advocate not to remain present before the trial Court on the appointed day and date for hearing of R.C.S. No.331 of 1999 as well as M.C.A. No.16 of 2009. However, inconvenience caused to Respondent Nos.1 to 4 cannot be ignored.

#8. Learned counsel for the Petitioners submits that the petitioners are poor persons and matter pertains to their substantive rights in relation to immovable and landed property. This petition, I am inclined to allow on condition that the petitioners shall make payment of Rs. 2,000/- to Respondent Nos.1 to 4 [i.e. Rs. 500/- each]. Learned counsel for the Petitioners seeks four weeks time to -:(5):- WP7166-11 deposit costs amount in this Court. Costs to be deposited on or before 7th January, 2013 in this Court. If the amount of costs is paid directly to the Respondent Nos.1 to 4, learned counsel for the said Respondents shall pass receipt on their behalf. Liberty also is granted in favour of the petitioners to deposit the amount of costs Rs.2000/- with the Registry of this Court on or before 7th January, 2013. Writ petition is allowed accordingly. Resultantly, Regular Civil Suit No.331 of 1999 stands restored on the file of learned Civil Judge, Junior Division, Kaij. Trial Court is directed to consider the motion for adjournment, by any of the party, strictly in accordance with the provisions of Code of Civil Procedure, hear the parties and dispose of the said suit within a period of four months from the date of receipt of communication from the Registry of this Court. The Registrar (Judicial) shall on receipt of costs Rs.2,000/- on or -:(6):- WP7166-11 before 7th January, 2013 and within a period of two weeks thereof communicate this order to the trial Court. Parties are directed to appear before the trial Court on 30th January, 2013.

#9. In case petitioners failed to deposit the amount of costs with the Registry of this Court [or pay directly to learned counsel for the Respondent Nos.1 to 4] on or before 7th January, 2013 this order shall stand cancelled without back reference to this Court.

#10. If the amount of costs Rs.2,000/- is deposited in this Court, liberty in favour of the Respondent Nos.1 to 4 to withdraw the same. Dt.20/11/2012 ans/WP7166-11 [S.B.DESHMUKH,J.]