IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10089 OF 2009 AND WRIT PETITION NO. 10090 OF 2009. Nandkishor Rupchand Sharma Arunkumar Rupchand Sharma ..... ..... ...Petitioners V/s Kalpana Bhikanrao Sonawane & Anr. ..... ..... .Respondents. Mr.N.R.Bubna, Adv. for the petitioners. Mr.M.M.Sathaye, Adv. for the Respondents. CORAM: A.P.DESHPANDE, J. 3rd December, 2009. PC: Rule. Rule made returnable forthwith. Heard. By consent of both the parties taken up for final hearing. The present petitioner is an appellant in regular civil appeal No. 152/09 pending on the file of Ad-hoc District Judge I, Malegaon. In the said pending appeal the petitioner’s advocate moved an application seeking adjournment on the ground that the petitioner proposes to file writ petition in the High Court against the order rejecting the amendment application. It was stated that the certified copy of the order is yet not received. The application was opposed by contending that deliberately with a view to delay the proceedings adjournment is being sought. The first appellate court being convinced that the petitioner is avoiding the disposal of the appeal has rejected the amendment application and dismissed the appeal on the same date i.e. 3.8.09. The petitioner thereafter on 31.8.09 applied for readmission of the appeal for hearing by taking recourse to order 41 rule 19 of Code of 1 Civil Procedure and rejection of the said application has given rise to the filing of present writ petition. Learned counsel for the petitioner has submitted that the facts narrated in the impugn;ed order are wholly incorrect in as much as no adjournment was sought on the ground that advocate was busy in some other court. It is submitted that the order suffers from non application of mind. It is also submitted that the appeal itself is pending from 2001 and thus it would be in furtherance of cause of justice to decide the appeal after hearing both the sides. The dismissal of appeal for non prosecution would cause irreparable loss and hardship to the petitioner. Per contra, learned counsel for the respondent has submitted that the petitioner has not been fair to the respondent in as much as though the petitioner is in possession of the premises he has not paid a single pie from 1.8.2001 onwards till date. It is an admitted position that till 30.7.2001 petitioner was in arrears of payment of rent/compensation in the sum of Rs.3,750/-. The monthly rent is Rs.625/-. Thus as per own showing of the petitioner which is revealed from the pursis filed by the petitioner before the first appellate court on 16.8.2001 that the petitioner is in arrears of RS.3,750/- till 30.7.2001 and admittedly thereafter no rent whatsoever has been paid. Thus the admitted arrears due and payable by the petitioner to the respondent is RS.63,750/- till August, 2009. It is submitted that in the event petitioner is to be granted one more opportunity of hearing by readmitting the appeal then petitioner be directed to deposit the arrears of rent and failing which no indulgence need to be shown. Learned counsel for the petitioner has shown his readiness to deposit the entire balance amount of arrears being RS.63,750/-. However he prayed for instalments. In the result writ petition is allowed. The impugn;ed order dated 2.11.2009 passed by Ad-hoc District Judge I, 2 Malegaon is quashed and set aside. Application moved by the petitioner for readmission of appeal moved under order 41 rule 19 of Code of Civil Procedure is allowed. The first appellate court shall readmit the appeal for hearing and proceed to decide the same in accordance with law after affording an opportunity of hearing to both the parties. This order is subject to condition that the petitioner deposits 50% of the amount of arrears being Rs.63,750/- by 31.12.2009 and the balance amount of 50% by 31.1.2010. It is made clear that if the petitioner commits any default in deposit of amount as directed the first appellate court shall dismiss the appeal on that ground alone. It is further made clear that no extension of time would be claimed by the petitioner. First appellate court shall make an endeavour to dispose of appeal within a period of three months from today. Learned counsel for the petitioner assures that the petitioner will not seek any adjournment in the first appellate court. Statement is accepted. 30.12.2009. 3