RAJENDRA MADHAV KULKARNIversusRAMESH SAMPAT MORE

2026:BHC-AUG:42160



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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                    WRIT PETITION NO. 12334 OF 2024

                                        Rajendra Madhav Kulkarni
                                                VERSUS
                                          Ramesh Sampat More
                                                    ...
                     Mr. K. P. Rodge, Advocate for the Petitioner
                     Mr. Milind Patil, Advocate for Respondent
                                                   …..
                                           CORAM : AJIT B. KADETHANKAR, J.
                                            DATED : 10TH SEPTEMBER, 2026

                     P.C. :-

                     .         Feeling aggrieved by the order dated 17.08.2024,

                     passed by learned Civil Judge Senior Division, Kopargaon in

                     Civil      Miscellaneous   Appeal    No.7     of    2023,    the

                     petitioner/defendant in the suit is before this Court. Suffice to

                     note that Regular Civil Suit No.20 of 2015 was instituted by

                     the present respondent against the present petitioner seeking

                     possession of suit property as also mandatory and perpetual

                     injunction.

                     2.        The petitioner/defendant filed his written statement

                     and issues were framed at Exhibit 32 on 12.04.2018. It

                     appears that for a long time, the plaintiff did not come further

                     to continue prosecution of the Civil Suit, and hence the then
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learned Joint Civil Judge Senior Division, Kopargaon pleased

to dismiss the suit for want of prosecution. By filing

Miscellaneous Civil Application no.7 of 2023, the plaintiff

sought restoration of the suit and recall of the dismissal order.

3.    After hearing both the parties, vide the impugned order

dated 17.08.2024, learned Judge of the Trial Court pleased to

allow the application and restored back the suit to its original

position.

4.    On this backdrop, defendant is before this Court.

5.    Mr. K. P. Rodge, learned Advocate for the petitioner

would vehemently submit that the facts speak itself that the

plaintiff was absolutely lethargic about his right and failed to

prosecute the suit meticulously. He would submit that the

restoration of the suit would enable the plaintiff to keep on

harassing the petitioner/defendant under such a cause for

which the plaintiff himself was not found to be serious. With

this, it is prayed to allow the Writ Petition.

6.    Per contra, Mr. Milind Patil, learned Advocate for the

plaintiff/respondent would stand by the reasoning rendered

by the learned Judge of the Trial Court. He would submit that

the reasons which were tendered by the plaintiff for failing to
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prosecute the suit timely were justifiable and were rightly

accepted and appreciated by the Trial Court. He would submit

that the cost imposed by the Trial Court is also paid by the

plaintiff. Now, he points out that in the meantime i.e. during

the pendency of the Writ Petition, the evidence part is also

over and the matter is fixed for hearing of the suit. Thus, he

prays that the Writ petition be dismissed.

7.    It is informed by both the learned Advocates that the

suit is of year 2015.

8.    I have heard both the learned Advocates extensively. I

find that when the suit was dismissed on 20.09.2021 for want

of prosecution, surprisingly the then learned Judge of the Trial

Court has rendered his observations on the merits of the suit.

Suffice to note, if the suit was to be dismissed for want of

prosecution, the Trial Court was not at all justified in

rendering such observations on merits of the suit.

9.    May it be, I have cautiously gone through the

observations recorded by the Trial Court while passing the

impugned order. The relevant portion of the observation is at

paragraph no.5 of the order. Observations speak thus:
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5] The grounds on which the court can set aside
the dismissal order has been mentioned in Rule
4 of Order IX of Code of Civil Procedure. As per
the said rule, the applicant may apply for an
order to set the dismissal aside if he satisfies the
court that, there was sufficient cause for non-
appearance when the suit was called on for
hearing. In the present matter as per the
contention of applicant, due to Covid-19
Pandemic and due to illness he could not attend
the court. Admittedly, in that period the Covid-
19 pandemic was going on and there were
restrictions imposed by the Government. It is
true that, as per the record, the applicant
remained absent for around 26 dates and failed
to adduce his evidence. But considering the
medical certificate filed on record and the
existing situation, to protect the rights of
applicant and to decide the matter on merits, it
is necessary to give an opportunity to the
applicant to contest the matter with a view to
decide the matter on merits it is necessary to
restore the suit as prayed. It is well settled that,
any      judicial  decision     where     adequate
opportunity is not given to a party to present his
version of the case, can result in injustice. In the
present matter, the delay is already condoned by
the Court and as such considering all, the
application deserves to be allowed. Hence, the
application is hereby allowed and the order of
dismissal dated 21.09.2021 is hereby set aside
and the suit bearing No. Regular Civil Suit
20/2015 be restored as per rules subject to
payment of cost of Rs.2,500/- (Rupees Two
Thousand Five Hundred only) payable to the
non-applicants for inconvenience caused. Parties
to note.
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10.     I do not find any infirmity in the impugned order passed

by the Trial Court. The order is well reasoned order.

Considering the fact that now the suit itself is fixed for

arguments, I find no interference is called by this Court in the

impugned order. In view of this, I pass following order:

                                ORDER

        a.       Writ Petition stands dismissed.

        b.       Learned Judge of the Trial Court is
        requested to conclude the suit within a period of
        six months from today.

        c.       Both sides are at understanding that they
        shall not seek any unjustifiable adjournment and
        shall co-operate the Trial Court in speedy disposal
        of the suit.



                                       ( AJIT B. KADETHANKAR, J. )

Rushikesh/2026