Megha 23_wp_12363_2017 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.12363 OF 2017 WITH INTERIM APPLICATION NO.1928 OF 2025 IN WRIT PETITION NO.12363 OF 2017 Smt. Vanita Vijay Birmal and Anr. ...Petitioners V/s. Sawalaram Ananda Kamble (Mahar) and Ors. ...Respondents ________________ Mr. Durpad S. Patil with Ms. Srushti Chalke for the Petitioners. Mr. Prakash Mahadik for Respondent No.1. Mr. Nachiket Khaladkar with Mr. Dinesh Nagarkar for legal heirs of Respondent No.2. ________________ CORAM: SANDEEP V. MARNE, J. DATED: 29 SEPTEMBER 2026. P.C.: 1) Petition challenges order dated 10 October 2017 passed by the District Judge-1, Baramati dismissing Misc. Civil Appeal No.42 of 2016 and confirming the order dated 16 April 2016 passed by the Civil Judge, Senior Division, Baramati. By its order dated 16 April 2016 the Trial Court has dismissed Civil Misc. Application No.48 of 2011 filed by the Page No. 1 of 8 29 September 2026 026:BHC-AS:1 Megha 23_wp_12363_2017 Petitioners under the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908 (the Code) for setting aside ex-parte decree dated 28 February 2011 in Special Civil Suit No.43 of 2005. 2) I have heard Mr. Patil, the learned counsel appearing for the Petitioners, Mr. Khaladkar, the learned counsel appearing for Respondent No.2 and Mr. Mahadik, the learned counsel appearing for Respondent No.1. I have considered the submissions canvassed by the learned counsel appearing for the parties. 3) It must be observed at the very outset that this is a second round of litigation before this Court concerning the issue of setting aside ex- parte decree dated 28 February 2011. Earlier the decree was set aside by allowing Civil Misc. Application No.48 of 2011 and the Suit was restored by order dated 3 October 2013/ 2 December 2013. However, Respondent Nos.1 and 2 /original Plaintiffs filed Writ Petition No.6615 of 2014 complaining that the Trial Court decided the application for condonation of delay as well as application for setting aside ex-parte decree by a composite decree. Therefore this Court confined the order dated 3 October 2013/ 2 December 2013 only to delay condonation aspect and directed the Trial Court to decide Civil Misc. Application No.48 of 2011 afresh on merits. This time, the Trial Court took a different view than the one earlier taken and held that the Petitioners failed to show reasonable cause for their absence when ex-parte decree was passed. Accordingly, by impugned order dated 16 April 2016, Civil Misc. Application No.48 of 2011 is dismissed. The Appellate Court has confirmed the Trial Court’s Page No. 2 of 8 29 September 2026 Megha 23_wp_12363_2017 order dated 16 April 2016 by dismissing Misc. Civil Appeal No.42 of 2016 by judgment and order dated 10 October 2017. 4) Perusal of the pleadings in Civil Misc. Application No.48 of 2011 would indicate that the Petitioners had pleaded inter-alia the grounds of medical problems faced by Petitioner No.2 on account amputation of his leg in the year 2008 as well as death of father of Petitioner No.2 (who was father-in-law of Petitioner No.1) on 12 January 2011 as the main grounds for justifying non-appearance before the Court when ‘no cross’ order was passed on 21 February 2011 and when ex-parte decree was passed on 28 February 2011. It would be apt to reproduce pleadings in paragraph 4 of Civil Misc. Application No.48 of 2011, which read thus:- (4) Despite of the father of the applicant No. 2 / father in law of applicant No. 1 due his illness and old age physical problems and trubles in the month of January 2011 on 12/4/2011 expired in the Pune. As if the death of the father of applicant No. 2 the applicant No. 2 though he himself, physically is disabled he was required to perform every rituals as per custom and religion as a son. Therefore the applicants in the period of last three to four months period could not make contact with their advocate as such they were not having any knowledge about the stage and date of the suit proceeding. However just before fifteen days Back the advocate of these applicants informed them that as he has been attended the civil Court Baramati in in the inquiry inquiry made by him he became to learn that when he having made inquiry in the court C.J.S.D. Baramati Shri Rathod Saheb it has been transpired to him their civil suit was transferred to other C.J.S.D. Baramati Shri Jagdale Saheb and in pursuance thereof when they themselves and their advocate found absent at that time Plaintiffs led their evidence and without following of due procedural law get the suit ex-parte decreed. 5) It appears that in the earlier order dated 3 October 2013/ 2 December 2013, the Trial Court had accepted both the grounds as a reasonable cause for non-appearance of the Petitioners and for setting aside the ex-parte decree. However, since this Court restricted order Page No. 3 of 8 29 September 2026 Megha 23_wp_12363_2017 dated 3 October 2013 only to the aspect of delay condonation and directed readjudication of Civil Misc. Application No.48 of 2011, the Trial Court has passed fresh order on the Application on 16 April 2016. 6) Perusal of order dated 16 April 2016 passed by the Trial Court would indicate that it has totally ignored aspect of death of father of Petitioner No.2, which was one of the main grounds pleaded in Civil Misc. Application. The Trial Court took into consideration only the ground of medical condition of Petitioner No.2, whose leg has been amputated in the year 2008. In the entire order dated 16 April 2016, there is absolutely no consideration to the factum of death of father of Petitioner No.2 on 12 January 2011. 7) When the order dated 16 April 2016 passed by the Trial Court was carried in appeal before the Appellate Court, attention of the Appellate Court was specifically invited to the factum of death of father of Petitioner No.2. However, the Appellate Court has recorded a finding in paragraph 16 of its judgment that the death of father of Petitioner No.2 might have occurred three years ago. Relevant findings recorded by the Appellate Court in paragraph 16 of its judgment read thus:- 16) To accept request made by the appellants, it need to be seen whether the reasons put-forth are sufficient. Evidence on the record shows, in the year 2008 appellant No. 2 was ill by the ailment relating to the leg, his leg was amputated. Same time, evidence came on the record shows, it was matter of two three months and not more than that. Evidence shows, judgment is delivered in the year 2011, so reason shown appears not sufficient for not attending matter for such a long period, especially when it is not proved in fact, appellant No. 2 was bed ridden from the year 2008 to 2011 and appellant No. 1 because of it could not pursue the matter. On the contrary, evidence came on the record indicates, during aforesaid period appellants did Page No. 4 of 8 29 September 2026 Megha 23_wp_12363_2017 their routine work (barring 2 to 3 months of illness of the appellant No.2). Apart from that, it was just possible for the appellants to contact their Advocate and to obtain information. Explanation is not on record as to why such step was not taken. So far as the death of father of appellant No. 1 is concerned, some period might have gone but not three years. Medical evidence on the record also do not support to the grounds put-forth by the appellants. Further facts came on the record show, even after getting information of disposal of the suit, appellants did not take further steps showing alertness. (Emphasis added) 8) In my view, findings recorded by the Appellate Court in paragraph 16 of its judgment are perverse to the core. The factual position is that father of Petitioner No.2 passed away on 12 January 2011 i.e. just about a month before ‘no cross’ order was passed and the Suit was decreed ex- parte. However, the appellate court has proceeded on the footing as if the death had occurred 3 years ago. It appears that the Appellate Court conflated the causes of medical condition of Petitioner No.2 (pertaining to the year 2008) with death of his father (occurring on 12 January 2011) and erroneously assumed that both events occurred in 2008. 9) In my view, therefore, both Trial as well as the Appellate Courts have not properly applied their minds to the reasons pleaded and demonstrated for setting aside the ex-parte decree. 10) Even otherwise, if the entire chronology of events is appreciated, in my view, a perfect case was made out by the Petitioners for setting aside ex-parte decree. No doubt, the Suit for partition (117 of 1995) converted into Regular Civil Suit No.43 of 2005 was lodged on 19 July 1995. However, thereafter several amendments have been carried out in the Plaint by the Plaintiffs. It appears that some portion of the suit Page No. 5 of 8 29 September 2026 Megha 23_wp_12363_2017 property is purchased by the Petitioners by Sale Deeds dated 26 March 1996 and 30 September 1996. The Plaintiffs were bit late in raising challenge to the said Sale Deeds and they were allowed to amend the Plaint on 17 July 2010 to incorporate challenge to the Sale Deeds executed in favour of the Petitioners. The Suit was thereafter transferred to Civil Judge, Junior Division, Daund and was again re-transferred to Civil Judge, Senior Division in the year 2005. On 10 February 2011 the Plaintiffs filed application seeking amendment of the Plaint, which was allowed and the area of suit property was allowed to be modified from 7 acres 7 Gunthas to 8 acres 25 Gunthas. Shortly before allowing application for amendment on 10 February 2011, father of Petitioner No.2 passed away on 12 January 2011. On 17 February 2011, the Plaintiff submitted amended copy of the Plaint as well as filed their evidence. The next date fixed for conduct of cross-examination was on 21 February 2011. This is the date on which Petitioners defaulted in making appearance before the Trial Court and invited an order of ‘no cross’. Suit was thereafter immediately decreed on 28 February 2011. 11) Considering the above chronology of events, it cannot be contended, by any stretch of imagination, that the Petitioners are responsible for delay in decision of the Suit. The Suit might have been pending since the year 1995. The issue that ought to have been considered by the Trial and the Appellate Courts was whether the Petitioners had made out sufficient cause for non-appearance on 21 February 2011 and 28 February 2011. In my view, death of father of Petitioner No.2 coupled with his medical condition, who had undergone amputation of his leg, presented a sufficient cause for setting aside ex- Page No. 6 of 8 29 September 2026 Megha 23_wp_12363_2017 parte decree dated 28 February 2011. Therefore, orders passed by the Trial and the Appellate Courts are clearly unsustainable and liable to be set aside. At the same time, it must be borne in mind that the Plaintiffs’ Suit is pending since the year 1995. Petitioners are subsequent purchasers of portion of the suit property in the year 1996. At their instance, the Suit is being restored after 16 long years. The Plaintiffs are deprived of fruits of the decree dated 28 February 2011. Though Petitioners made out some cause for remaining absent before the Trial Court on 28 February 2011, they need to compensate the Plaintiffs for their negligent acts. In my view, considering the facts and circumstances of the case, it would be appropriate to award costs of Rs.50,000/- each to be paid to Respondent Nos.1 and 2, who are original Plaintiffs in the Suit. 12) In view of the above discussion, Petition succeeds and I proceed to pass the following order:- (i) Order dated 16 April 2016 passed by the Civil Judge, Senior Division, Baramati in Civil Misc. Application No.48 of 2011 and judgment and order dated 10 October 2017 passed by the District Judge-1, Baramati in Misc. Civil Appeal No.42 of 2016 are set aside. (ii) Civil Misc. Application No.48 of 2011 is allowed and Special Civil Suit No.43 of 2005 is restored on the file of the Civil Judge, Senior Division, Baramati. Page No. 7 of 8 29 September 2026 Megha 23_wp_12363_2017 (iii) The Petitioners shall pay to Respondent Nos.1 and 2 costs of Rs.50,000/-each. The amount of costs shall be deposited by the Petitioners before the Trial Court within a period of four weeks with liberty to Respondent Nos.1 and 2 to withdraw the same. Deposit of costs shall be condition precedent for restoration of the Suit. (iv) Considering the fact that the Suit is pending since the year 1995, the Trial Court shall accord due priority for its expeditious disposal and shall make an endeavour to decide the Suit as expeditiously as possible, preferably within a period of one year. (v) The Petitioners/Respondents shall not seek unnecessary adjournments before the Trial Court. 13) With the above directions, the Writ Petition is allowed and disposed of with costs as directed above. 14) With the disposal of the Writ Petition, nothing survives in the Interim Application and the same is accordingly disposed of. [SANDEEP V. MARNE, J.] Page No. 8 of 8 29 September 2026 Signed by: Megha S. Parab Designation: PA To Honourable Judge Date: 30/09/2026 14:54:59