Rangrao s/o. Champatrao Deshmukh & Ors. vs The Municipal Council, Bhokar & Ors.

At the outset, Mr.Ram Shinde, learned advocate submits that he has instructions to appear for respondent no.1 and would file Vakalatnama in the Registry during the course of day.

Rule. Rule made returnable forthwith. Heard the learned counsel for the parties for final disposal of the petition.

The petitioners instituted Regular Civil Suit No.17 of 2015 in the court of learned Civil Judge, Senior Division, Bhokar for the decree of recovery of possession of the suit property. Ancillary reliefs of perpetual injunction are also claimed in the suit. During the trial, notices were issued to the defendants. Some of the defendants appeared. However, the notice issued to the defendant no.10 could not be served for one or more reason. For years together, the petitioners/plaintiffs failed to take steps for serving defendant no.10 on this or that pretext. The petitioners then filed an application below Exh.108 for issuance of summons to defendant no.10. The said application came to be rejected. The trial Court vide impugned order dated 31.01.2023 pleased to dismiss the suit against defendant no.10 in terms of Order 9 Rule 5 of the Code of Civil Procedure. The said order is impugned in this Writ Petition.

The petitioners filed another application (Exh.110) seeking time to file list of witnesses and lead the evidence. Although the title of the application shows such prayer, however, the entire contents are showing necessity of defendant no.10 in the suit. After hearing the parties, this application also came to be turned down with a reasoned order as against the petitioners before this court.

On 20.02.2023 this court heard learned advocate for the petitioners and issued notice to the parties putting a request to the trial court to adjourn proceedings to the next date. Pursuant to the notice issued by this court, other side caused their appearance in the matter. It is fairly submitted by learned advocates for the respective parties that the arrangement made by this court on the first date is continued till today and as such the suit is not proceeded further.

Mr.Kasane holding for Mr.P.S.Dighe, learned advocate for the petitioners vehemently argued the petition and submitted that if the application is not allowed the petitioners shall loose opportunity of hearing. He submits that the petitioners would meticulously prosecute his suit and shall not cause any hindrance in the suit proceedings. He would submit that valuable rights of the petitioners are involved in the suit and in the absence of defendant no.10, the decree will not be fruitful for the plaintiffs. With this, he prays to allow the Writ Petition.

Mr.V.S.Kadam and Mr.Ram Shinde, learned advocates for the respective respondents vehemently oppose the petition. They would submit that this is a classic example which shows that the suit is pending for more than eleven years on account of lethargy of the plaintiffs. They would submit that in the ordinary course, they would not have objected to allow the Writ Petition in order to grant full opportunity of hearing to the petitioners. However, they would submit that considering that pendency of the suit is on account of the present petition which is to be read together with pendency of the suit at the best of the plaintiffs, the Writ Petition be dismissed.

I have heard learned advocates for the parties at length. It is evident that it is the plaintiffs who have consistently failed to prosecute his suit. The orders speak that many a times the plaintiffs had opportunity to take steps against the respondent/defendant no.1, however, they failed to do so. Accordingly, the first impugned order was passed thereby dismissing the suit against the defendant no.10. Subsequent impugned order although is sought to be shown with a different cause of action still it refers back to the earlier order dismissing the suit against defendant no.10. In any case, considering the prayer made in the plaint, I feel that one chance needs to be given to the petitioners/plaintiffs to take steps against defendant no.10 as a last chance.

Mr.Kadam, learned counsel for respondents nos.2 to 13, submits that he appears for respondent nos.2 to 13 in this petition which includes even the defendant no.10. With utmost fairness he submits that for taking the civil rights of the parties to its logical end, he would cause appearance for defendant no.10 if this court is of the opinion that the Writ Petition is to be allowed and the suit is to be restored as against defendant no.10.

In view of the above and in the interest of justice and particularly and in view of the fair statement of Mr.Kadam, learned counsel for respondent nos.2 to 13, I deem it appropriate to allow the petition. Hence, the following order:-