1 wp 15090-2019.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 15090 OF 2019 1. Hausabai Govindrao Baraskar Age : 71 years, Occu. Agri., R/o. Baraskar Mala, Nagapur, Tal. & Dist. Ahmednagar. 2. Smt. Lankabai Govardhan Shinde, Age : 50 years, Occu. : Agri. R/o. Walunj Pargaon, Tal. & Dist. Ahmednagar. 3. Sundrabai Ramesh Sapre Age : 47 years, Occu. : Household, R/o. Nagapur, Tal. & Dist. Ahmednagar. .. Petitioners (Orig. Appellants) Versus 1. Bahiru s/o Govindrao Baraskar Age : 51 years, Occu. : Agri. 2. Ganpat s/o Govindrao Baraskar Age : 44 years, Occu. : Agri. Both R/o. Baraskar Mala, Nagapur, Tal. & Dist. Ahmednagar. 3. Radhesham s/o Madhavlal Khandelwal Age : 70 years, Occu. : Business 4. Dipak s/o Radhesham Khandelwal Age : 50 years, Occu. : Business 5. Ravi s/o Radhesham Khandelwal Age : 40 years, Occu. : Agri. R. No. 3 to 5 All R/o. Arya Niwas, Kapad Bazar, Ahmednagar, Tal. & Dist. Ahmednagar. 1 of 9 2025:BHC-AUG:3546 2 wp 15090-2019.odt 6. Ajay s/o Sahebrao Baraskar Age : 43 years, Occu. : Agri. & Business R/o. Bolhegaon Phata, Nagapur, Tal. & Dist. Ahmednagar .. Respondents (Orig. Respondents) Smt. C. S. Deshmukh, Advocate h/f Mr. P. P. Dawalkar, Advocate for the Petitioners. Mr. V. S. Bedre, Advocate for Respondent Nos. 3 to 5. Respondent Nos. 1, 2 & 6 are served. CORAM : KISHORE C. SANT, J. DATED : 03rd February, 2025. P. C. :- . This petition is at the instance of original plaintiffs/appellants in Regular Civil Appeal against the original defendants/respondent Nos. 1 to 5 in the Regular Civil Appeal. The respondent No. 6 is the person who withdrew the appeal of the appellants as power of attorney holder. The petitioners are therefore before this Court as their application to restore the appeal came to be rejected by the learned District Judge – 3, Ahmednagar by order dated 04.02.2019. 2. The facts in short, giving rise to the present petition, are that, the petitioners filed R.C.S. No. 36/2007. The said suit came to be dismissed by the learned Trial Court. The petitioners therefore filed an appeal in the Court of learned District Judge, Ahmednagar bearing Regular Civil Appeal No. 258/2009. The appeal was filed by the petitioners themselves by engaging a lawyer. The petitioners were prosecuting the 2 of 9 3 wp 15090-2019.odt appeal, however, in the meantime on 25.01.2012 the respondent No. 6 obtained no objection from earlier lawyer and engaged a new lawyer. The respondent No. 6 thereafter filed a pursis dated 31.01.2012 seeking withdrawal of the appeal through newly engaged lawyer. The learned District Judge by order dated 31.01.2012 passed an order disposing of the appeal as withdrawn on the same date i.e. on 31.01.2012. On coming to know about this order, the present petitioners filed an application bearing Misc. Civil Application No. 131/2015 praying for recall of order dated 31.01.2012 and to restore the appeal for decision on merits. The said application by order dated 04.02.2019 came to be rejected. The petitioners are thus before this Court. 3. The learned advocate Smt. Deshmukh for the petitioners vehemently argued the petition. She submits that, the suit was filed by the petitioners that came to be dismissed on 27.08.2009 and against that the appeal was preferred. The appeal was filed by the petitioners personally engaging a lawyer and not through the power of attorney holder. The power of attorney holder, by playing fraud upon the Court, without any instructions from the petitioners, engaged a new lawyer by obtaining no objection from the advocate who was engaged by the petitioners on 25.01.2012 and on the same date instructed the said 3 of 9 4 wp 15090-2019.odt lawyer to file withdrawal pursis. It was necessary for the Court to verify as to whether the petitioners are willing to withdraw the appeal. No such procedure was followed. She further submits that, though there was general power of attorney executed in favour of respondent No. 6, there was no authority given to him to withdraw the proceedings. The said authority was given in respect of Regular Civil Suit No. 258/2009. Thus, there was no specific power given to the power of attorney holder to withdraw the proceedings. As this withdrawal was behind back of the petitioners, the petitioners could not get the opportunity to point out the facts as to how the fraud was played upon the Court. She relies upon the judgment in the case of Dankha Devi Agarwal (D) By L.Rs. Vs. Tara Properties Pvt. Ltd., and Ors.1 to submit that, if the suit is withdrawn in unusual circumstances, that gives rise to doubt. She submits that, in the present case also the appeal is withdrawn under unusual circumstances and therefore, the withdrawal order needs to be set aside by allowing the Misc. Civil Application No. 131/2015 decided by the learned District Judge – 3, Ahmednagar. 4. The learned advocate Mr. Bedre for respondent Nos. 3 to 5 vehemently opposed the petition. He submits that the dispute was in respect of the land Survey No. 259/1/A admeasuring 1 H 63 R. The 1 AIR 2006 SC 3068. 4 of 9 5 wp 15090-2019.odt respondent Nos. 3 to 5 purchased the land only to the extent of 86 R on 02.01.1991. The suit came to be filed after 15 years of the said transaction. The suit was thus time barred. The suit was therefore rightly dismissed. In the suit, the evidence was given by the power of attorney holder. It is the same power of attorney holder who withdrew the appeal. As on the date of withdrawal of the appeal, the power of attorney was very much in force and was not cancelled. He further submits that, though the appeal was withdrawn in the year 2015, the application came to be filed in the year 2019 i.e. after almost four years. There is no proper explanation for this delay. It can safely be inferred that the petitioners had accepted the order of withdrawal. Now, they want to restore the appeal. He submits that, while passing the order the learned District Judge had verified that the respondent No. 6 had the proper authority as G.P.A. holder of the petitioners. Proper care is taken before passing the order. The learned Trial Court followed the proper procedure while passing the order. The order cannot be said to be under unusual circumstances. He thus supports the order and prays for rejection of the writ petition. 5. This Court in view of the facts had called for record and proceeding of the appeal to verify as to whether the appeal was filed by the petitioners under their signature. It was the case of the 5 of 9 6 wp 15090-2019.odt respondents that the appeal was filed by the power of attorney holder. On going through the appeal memo it is seen that, there is no reference of power of attorney holder and the same is filed by the petitioners only. Even the address memo given with appeal memo shows that the addresses of the appellants only were given and not of power of attorney holder. The application was filed for taking the matter on board on 31.01.2012 and on the very same day the learned Trial Court passed an order on the withdrawal pursis. Even in the suit, there is no mention of power of attorney holder and the suit was filed under the signatures of the petitioners only. This Court has also seen the copy of power of attorney executed by the petitioners. From clause No. 6 nothing appears to show that the petitioners had given express authority to G.P.A. holder to withdraw the proceedings. This Court has every reason to believe that the petitioners were prosecuting the appeal on their own and not through the G.P.A. holder. Nothing is there to show that the petitioners had instructed the power of attorney holder to withdraw the appeal. The power of attorney holder changed the lawyer and instructed him to file an application to take the matter on board and on the same day the learned District Judge passed an order. The Hon’ble Apex Court in the case of Dankha Devi Agarwal (D) by L.Rs. (supra), has held in paragraph No. 24 which reads as below : 6 of 9 7 wp 15090-2019.odt “24. Be that as it may, there are certain circumstances in which the aforesaid suit filed by Smt. Dankha Devi Agarwal was withdrawn as also the manner in which the application filed by her for recalling the order of dismissal of the suit was dismissed by the learned Single Judge. The manner in which Smt. Anjali Agarwal, who was Shri Bhagirath Agarwal’s Advocate, assumed charge of the proceedings on behalf of Smt. Dankha Devi Agarwal in the suit filed by her against Bhagirath Agarwal, generates an impression that all was not aboveboard. The withdrawal of the suit soon after Smt. Anjali Agarwal took over the proceedings heightens the said suspicion. Added to the above circumstances, is the fact that the suit was mentioned by the learned counsel briefed by Smt. Anjali Agarwal for the purpose of withdrawal thereof on a day when the same was not even listed for the said purpose.” 6. From paragraph No. 24 of the said judgment this Court finds that, the facts of this petition are similar to the facts of the reported judgment. The said judgment is therefore applicable to the facts in the present petition. 7. Considering this, at the most grievance by the respondents can be considered that, now after much lapse of time they have to face the appeal. The impugned order was passed on 31.01.2012 and the application was filed in the year 2015 and still now they will have to face the appeal if the impugned order is quashed and set aside. This Court finds that, the valuable right of the petitioners is involved as the 7 of 9 8 wp 15090-2019.odt proceeding is in respect of landed property. It would not be just to leave the petitioners remediless. Certainly, a case is made out creating doubt about real intention of the petitioners to withdraw the appeal. Though respondent No. 6 is served, has not appeared in the writ petition. He was the best person to throw light on the factual aspects. The petitioners are women who are required to be protected. So far as hardship that would be caused to the respondents can be taken care of by passing suitable orders. 8. This Court therefore is passing the following order. ORDER (i) The writ petition stands allowed in terms of prayer clauses (B) and (C). (ii) The proceeding of Regular Civil Appeal No. 258/2009 before learned District Judge, Ahmednagar stands restored to its original position. The appeal be decided on merits as early as possible and preferably within a period of six (06) months from the date of restoration of the appeal. (iii) This order is subject to petitioners depositing cost of Rs. 5,000/- (Rs. Five Thousand only) each to be paid to respondent Nos. 3, 4 and 5. 8 of 9 9 wp 15090-2019.odt (iv) With this, the writ petition stands disposed of. ( KISHORE C. SANT, J. ) P.S.B. 9 of 9