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 2026:BHC-AUG:41587 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