Writ Petition No.374 of 1996

19th July, 2001

Petitioner Counsel: Shri. T.S.INGALE
Respondent Counsel: Mrs. K.V.GUPTA

Cases Cited:
Dulal Chandra Oja Vs. Banamali Guchait, AIR 1989 Calcutta 91 [Para 6]
AIR 1987 SC 1353 [Para 6]

JUDGMENT

JUDGMENT :- This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Joint District Judge, Satara dated September 18, 1995 in Misc. Civil Appeal No.226 of 1989.

2. The Petitioner had filed suit for redemption and repurchase of the subject land in the Court of the Civil Judge, J.D., Phaltan being R.C.S.No. 305 of 1986. The said suit was filed on 21-10-1986. It is not in dispute that the suit proceeded thereafter and was listed for hearing on 10-6-1988. However, on that date neither the Petitioner nor his Advocate remained present on account of which the trial Court proceeded to dismiss the suit for non prosecution. Immediately thereafter on 7-7-1988 the Petitioner filed application for restoration of the suit. The cause stated in the said application is that the Petitioner was unwell and therefore could not remain present in the Court. However, it is not in dispute that the application does not assert any reason explaining the cause for non appearance of the Advocate concerned. The application was contested by the Respondent. According to the Respondent the Petitioner was hale and hearty and in fact was seen moving in the city on the said day. It is further asserted by the Respondent that the Petitioner threatened one of the defendant's witnesses and warned the said witness not to depose against him. In support of this plea, the Respondent examined himself as well as the said person who was threatened by the Petitioner, namely, Shri. Vitthal Kotekar, whereas the Petitioner examined himself as well as one witness Hanuman Bhosale in support of his plea that he had suffered burn injury to his hand and therefore was confined to his residence. The trial Court considered the said application as well as the evidence adduced by both the sides and was pleased to reject the said application vide order dated 19th September 1989. The Petitioner carried the matter in appeal before the District Court at Satara by way of Misc. Civil Appeal No.226 of 1989. The Appellate Court has also appreciated the evidence and affirmed the view taken by the trial Court that no sufficient cause was shown by the Petitioner. This concurrent view taken by the two courts below on the application for restoration of the suit, which was dismissed for default, is challenged in the present writ petition.

3. The learned Counsel for the Petitioner mainly argued that the premise on which the appellate court has proceeded that the restoration application was filed beyond time was contrary to record. He pointed out that the suit was dismissed for default on 10-6-1988 and immediately thereafter on 7.7.1988 the subject application was preferred. The learned Counsel for Respondent has, however, justified the order under challenge for the other reasons recorded by the appellate court.

4. In my view, even accepting the Petitioner's contention that the application for restoration was within time, however, that would not materially affect the other conclusions reached by the two courts below. Two courts below have opined that the application preferred by the Petitioner was totally vague, for it merely states that the Petitioner was unwell whereas for the first time during the evidence the ground of burn injury was put forward. Be that as it may, the Petitioner did not produce any documentary evidence in support of his plea that he had suffered burn injury nor did he choose to examine doctor from whom he had taken treatment. The two courts below have appreciated the evidence on record and eventually found that the Petitioner not only failed to show sufficient cause but the stand taken by the petitioner was totally fraudulent.

5. The learned Counsel for the Petitioner however contends that the courts below have misdirected themselves and have clearly overlooked the contradictions in the evidence of witness Kotekar and evidence of Respondent Shri. Ranware. The so called contradictions pointed out by the learned Advocate for the Petitioner would be of no avail, for it would at best entitle the Petitioner to contend that witness Kotekar was unreliable witness. On the other hand, from the line of cross examination of the said witness it would appear that the Petitioner has admitted the position that the Petitioner had met the Respondent at the relevant time. In this view of the matter, it is too late for the petitioner to contend that the Respondent has taken up a false plea. Since two courts have already appreciated the matter at length, it is not possible to reappreciate the evidence in exercise of writ jurisdiction. Even if it was possible for this Court to take a different view in the matter, it cannot be done in writ jurisdiction as this court is not sitting in appeal over the orders passed by the two courts below. Understood thus, the present petition is totally devoid of any merits.

6. The learned Counsel for the Petitioner has relied on decision reported in AIR 1989 Calcutta 91 - Dulal Chandra Oja V/s. Banamali Guchait and Ors. to contend that the courts should adopt liberal approach while considering the application for restoration. No doubt the apex court in AIR 1987 SC 1353 has taken this view, but the present case is one where the Petitioner has not only failed to show sufficient cause but the stand taken by the petitioner appears to be false as established from the record. Moreover, in the present case the evidence on record would indicate that the Petitioner has indulged in threatening the defendant's witness. Even assuming that the courts should adopt liberal approach, but in the wake of the facts of the present case, no indulgence needs to be shown while exercising writ jurisdiction under Article 227 of the Constitution of India.

7. In the circumstances, this petition fails and the same is dismissed with costs.

Certified copy expedited.

Petition dismissed.