Advocates:
['JADHAVAR SANTOSH S', 'NO CAVEAT', '', 'GOVT PLEADER', 'DR GODBOLE R J']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.12269 OF 2019

DHARMARAJ ASHOK HONMANE

VERSUS

PATODA GRAMVIKAS MANDAL THROUGH SECRETARY AND OTHERS

...

Advocate for the Petitioner : Shri P.G. Tambade h/f Shri S.S.Jadhavar

Advocate for Respondents 1 and 2 : Shri R.J. Godbole

AGP for Respondent 3 : Ms.V.S. Choudhary

...

CORAM: RAVINDRA V. GHUGE, J.

DATE :- 09^th March, 2022

Per Court:

1.

I have heard the extensive submissions of the learned

advocates for the respective sides and the learned AGP on behalf of the

respondent/ State.

2.

By this petition, the petitioner, original appellant in Appeal

No.8/2017, is aggrieved by the order dated 17.01.2019 passed by the

learned School Tribunal, Aurangabad vide which, Miscellaneous

Application No.1/2018 filed by the respondent/ Management praying for

recalling of the ex-parte judgment dated 22.11.2017, was allowed on

imposition of costs of Rs.1500/- only.

3.

Having considered the extensive submissions of the learned

advocates, I find from the record that the court notice was said to have

been offered to the Secretary as well as the Headmaster of the

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respondent/ Education Society (both are real brothers) on 20.07.2017 as

per the remark of the Postman. The Postman has written on the envelope

as “refused” and the date is 20.07.2017. After the ex-parte judgment was

delivered on 22.11.2017, these two brothers, Secretary and Headmaster,

presented the Miscellaneous Application on 03.01.2018 contending

therein that the First Information Report was registered against them in

the Jamkhed Police Station on 02.07.2017 invoking Sections 143, 147,

148, 149, 323, 324, 504 and 506 of the Indian Penal Code. They applied

for leave to the President of the Institution and in order to avoid arrest,

they left Patoda taluka and were residing with their relatives at Aranwadi,

Taluka Dharur. They got anticipatory bail on 16.09.2017. They were

unaware of the proceedings before the School Tribunal. After the

petitioner approached the Institution with the judgment of the School

Tribunal dated 22.11.2017, they realized that the School Tribunal has

decided the matter. Therefore, they approached the School Tribunal on

03.01.2018.

4.

No doubt, the respondents have made out a case for

restoration of the appeal, which was lodged on 13.04.2017 and was

decided on 22.11.2017. It is always in the interest of justice that the

proceedings are decided after contest on merits. It is only in certain

glaring cases that an ex-parte judgment is not required to be recalled since

the reasons cited by the aggrieved party are such that the aggrieved party

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does not deserve any sympathy.

5.

In the instant case, the postal envelope indicates the remark

of the postman as “refused”. This remark has presumptive value as it

indicates that the addressee has refused to accept the envelope when

offered to him. However, these respondents have produced certain

records, which has been adverted to by the School Tribunal in paragraph 9

of the impugned order. In these circumstances, the School Tribunal has

recalled the ex-parte judgment and restored the appeal. I do not find that

any error has been committed by the School Tribunal in passing the

impugned order. However, after considering the presumptive value of the

postal remark “refused” and the counter evidence produced by these

respondents, the benefit of doubt can be given to these respondents and

the petitioner can be compensated by slightly increasing the costs.

6.

In view of the above, since both these respondents are

representing the Institution as the Secretary and the Headmaster before

the School Tribunal, both of them would deposit Rs.5000/- each before

the School Tribunal within 30 days from today or directly handover the

amount to the learned advocate for the petitioner/ appellant before the

School Tribunal and the appellant shall execute a receipt of having

received the amount. The amount of Rs.