The court emphasized the need for the District Judge to consider the pending applications and the main controversy involved in reaching a decision.

JUDGMENT :

1. Heard.

2. Admit. Heard finally by consent of learned counsel for the parties.

3. The present appeal takes an exception to the order dated 16.04.2019 passed below Exh. 45 in Misc. Civil Application No. 120 of 2011 by the learned District Judge-1, Chandrapur.

4. According to the appellants, the plaintiff/ respondent No.1 had filed suit bearing Special Civil Suit No.118 of 2006 before learned 2nd Jt. Civil Judge Senior Division, Chandrapur for partition and separate possession of the suit properties. The suit was decreed. The original defendant No.1 (since deceased) challenged the judgment and decree of the learned Trial Judge before the learned District Judge-1, Chandrapur and also moved an application to condone the delay of 5 months in preferring the first appeal. The said application came to be registered as Misc. Civil Application No. 55 of 2008. However, the said application came to be rejected for want of prosecution. The deceased defendant No.1 then moved the Misc. Civil Application No. 120 of 2011 to restore the Misc. Civil Application No. 55 of 2008. However, since the original defendant No.1 died during the pendency of Misc Civil Application No. 120 of 2011 the legal heirs moved applications for setting aside the abatement and bringing them on record.

5. The present appellants are legal heirs of deceased defendant No.1. According to them, the Misc. Civil Application No. 120 of 2011 again came to be dismissed for want of prosecution on 24.08.2018. On the same day the appellants moved application for restoration by filing the application Exh. 45, however, the same came to be rejected by the learned District Judge-1, Chandrapur. It is this order which is impugned before me.

6. I have heard Mr. Madhur Deo, learned counsel for the appellants, who has reiterated the averments made in the application. I have also heard the learned counsel Mr. S. Raisuddin for the respondents who has vehemently opposed the application and pointed out that the learned District Judge-1 Chandrapur was justified in rejecting the application for want of prosecution and as also the restoration application. According to learned counsel, there being no merit in the application, the same is liable to be rejected.

7. I have gone through the impugned order dated 16.04.2019 passed below Exh. 45 in Misc. Civil Application No. 120 of 2011 by learned District Judge-1, Chandrapur. It appears that since beginning there was delay in filing the appeal and that is why Misc. Civil Application No. 55 of 2008 was filed. As the said application was not pursued in time the same came to be dismissed for want of prosecution and therefore, the Misc. Civil Application No. 120 of 2011 was filed so as to restore Misc. Civil Application No. 55 of 2008. But then again Misc. Civil Application No. 120 of 2011 came to be rejected for want of prosecution.

8. It is very much clear from the record that when Misc. Civil Application No. 120 of 2011 came to be rejected on 24.08.2018 on the very date the appellants moved an application (Exh. 45) for restoration of the same. But this application also came to be rejected by the impugned order. One thing is clear that the appellants were quite vigilant to move immediately on 24.08.2018 after the rejection of Misc. Civil Application No. 120 of 2011.

9. Ordinarily the learned District Judge-1, Chandrapur ought to have allowed that application so that earlier applications could have been disposed of on merits, however it was not so. The learned District Judge-1, Chandrapur had also failed to take into consideration the application for setting aside of abatement and application for bringing of Legal Representatives of deceased defendant No.1 which were very much pending on record. The learned District Judge-1, Chandrapur ought to have shown some consideration for pendency of various applications keeping in mind the main controversy involved in between the parties and which were to be agitated by appellants by filling the appeal.

10. For t