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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//


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