1 915-wp-12334-2024 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 2026:BHC-AUG:42160 2 915-wp-12334-2024 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 3 915-wp-12334-2024 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: 4 915-wp-12334-2024 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. 5 915-wp-12334-2024 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