Bombay High Court

SADEV @ SAHDEV SHIVRAM KAMBALEversusINDRAJEET SHIVRAM KAMBALE AND OTHERS

Disposal: DISPOSED OFF

Holding

The trial court's order rejecting the restoration applications is quashed and the suit is restored to its original file.

Summary

The petitioner, original plaintiff in a partition suit, had the suit dismissed for default after failing to lead evidence within the prescribed time. He filed applications for restoration of the suit and framing of issues, which the trial court rejected, citing lack of diligence. The petitioner argued that the default was due to his counsel's medical ailment and not intentional, seeking relief in a writ petition. The High Court held that an advocate’s illness constitutes sufficient cause and that procedural technicalities should not defeat substantive justice. Consequently, the court quashed the trial court’s order, restored the suit to its original file, and directed the trial court to dispose of the suit within a year.

Issues considered

Whether the default caused by the advocate's illness is a sufficient ground to condone the default and restore the suit.
Whether the trial court's rejection of the restoration applications was a material irregularity warranting reversal.
Whether procedural defaults can be overridden in the interest of substantial justice.

Subjects

restoration of suit
default
advocate's illness
civil procedure
substantial justice
writ petition
expeditious disposal

Judgment

2026:BHC-AUG:41587
                                                  1                    907-WP-7930-13.odt




                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD


                                 WRIT PETITION NO. 7930 OF 2013

                              SADEV @ SAHDEV SHIVRAM KAMBALE
                                             VERSUS
                           INDRAJEET SHIVRAM KAMBALE AND OTHERS
                                                 ...
                 Advocate for Petitioner : Mr. N. B. Bhosale h/f. Mr. V. D. Salunke
                Advocate for Respondent No.10 : Mr. P. V. Mandlik, Mr. A. S. Gandhi
                                  Respondents No.1 to 9 served
                      Petition dismissed against Respondent No.11 as per
                                     order dated 20.12.2013
                                                 ...

                                           CORAM :        SACHIN S. DESHMUKH, J.
                                           DATE       :   04-09-2026
                PER COURT:-

                1.     The petitioner assails the order rendered by the Civil Judge,

                Junior Division, Lohara, rejecting the applications at Exhibits 57 to

                60 in Regular Civil Suit No.97 of 2010, dated 16.08.2013.


                2.    The petitioner is the original plaintiff in a suit presented for

                partition and separate possession; having failed to lead evidence

                within the stipulated time, the learned Judge dismissed the suit for

                default / want of prosecution. Subsequently, applications were

                presented for restoration of the suit and framing of the issues,

                those suffered rejection by the trial court.


                3.    The learned counsel for the petitioner submits that owing to

                ailment of the petitioner’s advocate and, consequently, could not
                                 2                     907-WP-7930-13.odt



appear to conduct the proceedings and lead evidence. It is

contended that the default was neither intentional nor deliberate,

and in the interest of justice, the trial court ought to have allowed

the applications. On instructions, the learned counsel submits that

the petitioner does not wish to press the application at Exhibit-57.


4.    Per contra, Mr. Mandlik, the learned counsel for respondent

No.10, strongly supported the order under challenge; submitting

that the petitioner failed to show sufficient diligence while

prosecuting the suit, concluded that the trial court was entirely

justified in rejecting the applications and prayed for dismissal of

the present writ petition.


5.    Upon considering the rival submissions of the learned

counsel for the litigating sides and perusal of the material on

record, it is evident that the petitioner’s default primarily due to

the medical ailment of conducting counsel. It is a settled law that a

party should not suffer for the inadvertent absence of the

advocate.


6.    When technicalities are pitted substantial justice, it’s later

which shall prevail.   Rules of procedure are meant to serve as

handmaids of justice, not to defeat it. Courts must generally lean

towards deciding the matters on merits rather than shutting the

doors of justice at the threshold on technical defaults.
                                     3                   907-WP-7930-13.odt



7.      In view of the facts, the absence of advocate owing to

ailment constitutes sufficient cause. The order under challenge,

therefore, suffer from material irregularity and deserves to be

quashed and set aside to meet the ends of justice.


8.      Hence, the order:-

                                  ORDER

(i)     The Writ Petition is allowed.

(ii)    The impugned order dated 16.08.2013 below applications at

        Exhibits-58, 59, and 60 is hereby quashed and set aside.

(iii)   The application at Exhibit-57 is disposed of as not pressed.

(iv)    The applications at Exhibits 58, 59, and 60 stand allowed,

        and the suit is restored to its original file.

(v)     Since the suit dates back to the year 2013, the concerned

        trial court is directed to make an endeavour to dispose of

        the suit expeditiously, preferably within a period of one year

        from the date of receipt of this order.




                                     [SACHIN S. DESHMUKH]
                                             JUDGE

rrd

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