Bombay High Court
YASHODABAI MANOHAR KALWANE AND OTHERSversusSHANKAR DADA BHALKAR AND OTHERS
- Disposal
- DISPOSED OFF
Holding
The court restored the dismissed writ petition, holding that litigants should not be penalised for the inadvertent absence of their counsel.
Summary
The petitioners filed a civil application seeking restoration of Writ Petition No.12774 of 2021, which had been dismissed on 27.04.2026 for want of prosecution because their counsel failed to appear at two scheduled hearings. The petitioners explained that the advocate was detained in another matter before the same court, preventing attendance, and highlighted a consistent pattern of diligent prosecution of the writ since its filing in 2021. The court considered the principle that litigants should not be penalised for the inadvertent mistakes of their advocates and examined the past record of the case. It allowed the application, restoring the writ petition to the file and waiving notice for the respondents. The court also ordered a cost of Rs.5,000 to be paid by the petitioners to respondents Nos.1‑5, listed the matter for final hearing on 29.08.2026, and directed that the status quo regarding mutation entries be maintained until final disposal.
Issues considered
- Whether a writ petition dismissed for want of prosecution can be restored when the petitioner’s advocate was absent due to being engaged in another matter before the same court
- Whether the litigant should be penalised for the advocate’s failure to appear
Subjects
- restoration of writ petition
- want of prosecution
- advocate's absence
- status quo
- mutation entry
- civil procedure
- cost order
Judgment
1 922-ca-6400-2026.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 6400 OF 2026
IN WP/12774/2021
Yashodabai Manohar Kalwane And Others
VERSUS
Shankar Dada Bhalkar And Others
...
Advocate for Applicant : Mr. Murkute J.M.
AGP for Respondent/State : Mr. D.B. Bhange
Advocate for Respondent Nos.1 to 5 : Mr. M.M. Khan
...
CORAM : ROHIT W. JOSHI, J.
DATED : AUGUST 21, 2026
P.C.:
1. Leave to file additional affidavit along with documents.
2. Present application is filed for restoration of Writ Petition
No.12774 of 2021, which came to be dismissed for want of prosecution
vide order dated 27.04.2026. The petition was dismissed since learned
advocate for petitioners did not attend the hearing on 27.04.2026 on
first call in morning session and even on second call. Prior to the said
date, learned advocate for the petitioners was absent on 09.04.2026.
However, it appears from the record that said petition which was filed
in the year 2021 was being diligently prosecuted. Learned advocate
was attending the matter from time to time as and when the petition
was listed.
3. Perusal of order dated 26.03.2026 will demonstrate that
liberty was also sought to file additional affidavit by learned advocate
Mujaheed//
2 922-ca-6400-2026.odt
for the petitioners. It is stated in the application that on 27.04.2026 on
both occasions when the petition was called out for hearing, learned
advocate was held up in some other matter before this Court and,
therefore, could not attend the hearing of present petition.
4. For the reasons mentioned in the application and also having
regard to the past record coupled with settled legal principles that
litigants should not be penalized for the mistake of advocates, the
application of restoration is allowed.
5. Writ Petition No.12774 of 2021 is restored to file. Learned
advocate Mr. M.M. Khan waives notice for respondent nos.1 to 5.
Learned AGP waives notice for respondent nos.6 to 9.
6. List the petition for final hearing on 29.08.2026. In order to
balance the equities, cost of Rs.5,000/- be paid by the petitioners to
respondent nos.1 to 5.
7. Learned advocate for the petitioners prays that interim order
dated 23.11.2021 be continued till next date. Learned advocate for
respondent nos.1 to 5 states that the impugned order is already
implemented and mutation with respect to suit property is carried out
in respect of respondent nos.1 to 5.
8. In view of aforesaid, status quo as on today be maintained
with respect to mutation entries till final disposal of the petition.
[ROHIT W. JOSHI J.]
Mujaheed//
Checking your session…