1 wp 8299.2008.sxw srk IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8299 OF 2008 Jagannath Bapu Pawar .. Petitioner vs Sheshabai Dhondi Pawar & Ors. .. Respondents Mr. V.S. Talkute, Advocate for Petitioner. Mr. M.A. Patil, Advocate for Respondent nos. 1 to 4. .. CORAM: A.S.OKA,J DATE: 4th September, 2009. P.C. 1 Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent Nos. 1 to 4. Considering the narrow controversy involved, the Writ Petition is taken up for final disposal. 2 The petitioner is the plaintiff. By an order dated 9th September, 2008 passed on application Exhibit No.54 made by the petitioner, the learned trial Judge appointed a Survey Officer as the Court Commissioner. The petitioner was directed to deposit a sum of Rs. 5,000/- towards the fees of the Court Commissioner. The trial Court directed that if the petitioner failed to deposit the Court Commissioner’s fees till 17th September, 2008, the order shall stand vacated. On 14th November, 2008 the Trial Court noted that the petitioner was absent and process fees was not paid. On the very day, the petitioner made an 2 wp 8299.2008.sxw application at Exhibit 57 for setting aside the earlier order and for permitting the petitioner to pay process fees. The said application was also rejected on the same date i.e. on 14th September, 2008. Another application was made by the petitioner at Exhibit 58 on the same day by tendering an apology and seeking permission to pay the process fees. In view of the rejection of the earlier application, the learned Judge rejected the said application. 3 The learned counsel appearing for the petitioner pointed out that on 11th September, 2008 the amount costs payable under Order dated 9th September, 2008 as well as Commissioner fees of Rs.5,000/- were deposited by the petitioner, which shows that there was an intention to comply with the orders of the trial court. The learned counsel appearing for the first to fourth respondents submitted that the order of appointment of Court Commissioner was a self operative order and the petitioner failed to pay process fees for more than two months. He submitted that no interference is called for. 4 I have given careful considerations to the submissions. As per the order dated 9th September, 2008, the petitioner was required to deposit costs of Rs.500/- and a sum of Rs. 5,000/- towards the Court Commissioner’s fees and process fees. The amounts of Rs. 500/- and Rs. 5,000/- were paid by the petitioner on 11th September, 2008, what was not paid was the small amount of process fees. It is true that there is default on the part of the petitioner but it 3 wp 8299.2008.sxw cannot be said that the default was deliberate in as much as substantial amount was deposited by the petitioner within two days from the date of the passing of the order of the appointment of the Court Commissioner. By application at Exhibit 58, the petitioner tendered an apology. The trial court ought to have accepted the apology and permitted the petitioner to pay the process fees. Therefore, this petition must succeed. However, petitioner will have to pay costs quantified at Rs.3,000/-. 5 Hence, I pass following order: 1 The impugned orders passed by the Trial Court on Exhibit 57 and Exhibit 58 are quashed and set aside. 2 Permission is granted to the petitioner to pay process fees in terms of order below Exhibit 54. Process fees shall be paid by the petitioner within a period of one week from the date of receipt of writ of this order by the trial Court. If the petitioner has already paid process fees, the same will be treated as compliance of this order. 3 The petitioner will pay the costs of Rs. 3,000/- to the first respondent within a period of eight weeks from today. The amount of costs can be deposited by the petitioner with the trial Court within the stipulated time. 4 The Writ Petition is allowed in above terms. Judge.