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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.128 OF 2022

Kuttubdin Hasanali Ramzanali Legal

heir of Hananali Ramzanali & Anr

..

Appellants

Versus

Nirmalaben Shambhuprasad Patel,

deceased, thru LRs and ors

..

Respondents

…

Mr. Amit Gharte for the appellants.

Ms.Anjana Patel for respondent no.1A present in person.

CORAM: BHARATI DANGRE, J.

DATED : 4^th APRIL, 2022

P.C:-

1

Heard the learned counsel for the Appellant and Smt.

Anjana Patel, respondent no.1A, in the Appeal, who appear in

person. The Appeal seek intervention of this Court in the order

passed by the District Judge, Kalyan in Civil Miscellaneous

Application No.56 of 2017, which refused restoration of the

Regular Civil Appeal No.42/2010, which was dismissed for want

of prosecution on 11/04/2017.

2

It is trite position of law that the Courts must attain to

do substantial justice to both the parties, and Justice Vivian Bose

in Sangram Vs. Election Tribunal, Kotah, Bhurey, Lal Baya,

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1955 AIR 1915 425, in paragraph 16 and 17 has made relevant

observations to that effect, which read thus :-

“16

A code of procedure must be regarded as

such. It is procedure something designed to facilitate

justice and further its ends: not a penal enactment for

punishment and penalties; not a thing designed to trip

people up. Too technical a construction of sections that

leaves no room for reasonable elasticity of interpretation

should therefore be guarded against (provided always

that justice is done to both sides) lest the very means

designed for the furtherance of justice be used to

frustrate it.

17

Our laws of procedure are grounded on a

principle of natural justice which requires that men

should not be condemned unheard, that decisions

should not be reached behind their backs, that

proceedings that affect their lives and property should

not continue in their absence and that they should not

be precluded from participating in them. Of course,

there must be exceptions and where they are clearly

defined they must be given effect to. But taken by and

large, and subject to that proviso, our laws of procedure

should be construed, wherever that is reasonably

possible, in the light of that principle.”

There cannot be any doubt that the said position of law still holds

good. However, one also cannot lose sight of the fact that the

Code of Civil Procedure was required to be amended and several

time bound schedules came to be inserted, in order to do

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substantial justice between the parties, keeping in mind that it is

not interest of one of the party which should be focused upon,

but with an intention that the Court shall not permit any

particular party to take advantage of its own fault and prolong the

civil proceedings so as to keep the other party out of reach of

justice.

3

This principle particularly applies to the case, on

perusal of the impugned orders.

Pertinent to note that the Civil Appeal No.42/2010

filed by the appellant came to be dismissed on 11/4/2017 by

invoking Order 41 Rule 18-A of the CPC (Bombay Amendment)

which reads thus:-

18-A. Dismissal for want of prosecution.— Where after the

admission of an appeal the rules or the special directions of

the Court require the appellant to take any steps in the

prosecution of the appeal before a fixed date, and where

after due notice intimating the steps to be taken the

appellant fails to take such steps within the time prescribed

by be rules or allowed by the Court, the Court may direct

the appeal to be dismissed for Want of prosecution or may

pass such