Bombay High Court
MANISHA HEMANT SALIversusHEMANT CHUNNILAL SALI
- Disposal
- DISPOSED OFF
Holding
The order dismissing the appeal is quashed and the appeal is restored for fresh hearing on its merits.
Summary
The petitioner, Manisha Hemant Sali, filed a writ petition challenging the order of the Adhoc District Judge, Shahada, which dismissed her civil appeal (No. 22 of 2009) for want of prosecution after her counsel was absent. The appeal concerned a decree of divorce previously granted by the Civil Judge, Senior Division. The petitioner argued that the appeal had not been decided on merits and therefore deserved restoration, while the respondent contended that the divorce decree rendered the appeal moot. The High Court observed that the dismissal was solely procedural and not on merits, and that the petitioner should be afforded an opportunity to be heard. Consequently, the court set aside the dismissal order, allowed the writ petition, and restored the appeal for fresh adjudication on its merits.
Issues considered
- Whether an order dismissing a civil appeal for want of prosecution can be set aside and the appeal restored.
- Whether restoration of the appeal is appropriate despite a decree of divorce already being passed.
Subjects
- restoration of appeal
- want of prosecution
- procedural default
- civil appeal
- divorce decree
- opportunity of hearing
Judgment
2026:BHC-AUG:16343
1 of 3 904-WP.11153.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
904 WRIT PETITION NO. 11153 OF 2016
MANISHA HEMANT SALI
VERSUS
HEMANT CHUNNILAL SALI
...
Mr. Mohammad Naseer A. Shaikh, Advocate for the Petitioner.
Mr. Mukulanand R. Wagh, Advocate for Respondent.
...
CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 10th APRIL, 2026
P.C.:-
1. Heard learned Advocates for the respective parties.
2. By the present petition, the Petitioner is aggrieved by the
order dated 09.10.2015 passed by the learned Adhoc District Judge-1,
Shahada in Misc. Civil Application No.12 of 2011, whereby the
application filed for restoration of Civil Appeal No.22 of 2009 came to
be dismissed.
3. Mr. Shaikh, learned Advocate for the Petitioner, submits that
the Petitioner had preferred Civil Appeal No.22 of 2009 challenging the
order passed by the learned Civil Judge, Senior Division, Shahada in
H.M.P. No.49 of 2007. However, when the appeal was listed before the
Appellate Court, the learned Advocate representing the Petitioner
remained absent, and consequently, the appeal came to be dismissed
for want of prosecution. Thereafter, the Petitioner filed an application
Tauseef
2 of 3 904-WP.11153.2016
for restoration of the appeal, which came to be rejected by the
Appellate Court. It is submitted that since the appeal was not decided
on merits, one more opportunity deserves to be granted to the
Petitioner.
4. Per contra, Mr. Wagh, learned Advocate for the Respondent,
strongly opposed the petition contending that the decree of divorce has
already been passed and, therefore, no useful purpose would be served
by restoring the appeal.
5. Having heard the learned Advocates for the respective parties
and upon perusal of the record, it is evident that the appeal came to be
dismissed solely on account of absence of the learned Advocate for the
Petitioner and not on merits. In such circumstances, in order to afford
an opportunity of hearing and to ensure that the matter is decided on
merits, the impugned order deserves to be set aside.
6. Hence, the following order:
ORDER
(i) The writ petition is allowed.
(ii) The order dated 09.10.2015 passed by the learned
Adhoc District Judge, Shahada in Misc. Civil
Application No.12 of 2011 is hereby quashed and set
aside.
(iii) Misc. Civil Application No.12 of 2011 stands allowed.
(iv) Civil Appeal No.22 of 2009 is restored to the file of the
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3 of 3 904-WP.11153.2016
Appellate Court.
(v) The Appellate Court shall decide the appeal afresh on
its own merits, in accordance with law, after giving an
opportunity of hearing to both the parties.
(vi) The parties shall appear before the Appellate Court on a
date to be fixed by that Court.
(vii) The appeal shall be disposed of expeditiously.
(SIDDHESHWAR S. THOMBRE, J.)
Tauseef
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