1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6764 OF 2008 Suresh Sadashiv Bhagwat & Anr .. Petitioners Versus Annappa Balu Powar & Ors. .. Respondents Mr.S.R.Ganabavale for petitioners. Mr.B.A.Powar for the respondent no.1. CORAM : A.S.OKA, J. DATE : 20th July 2009. P.C.: . Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondent no.1. Considering the controversy involved, service of notice to the other respondents is dispensed with. To ensure that the suit filed by the 1st respondent is expeditiously heard, writ petition is forthwith taken up for final disposal. 2. In a suit filed by the 1st respondent, on 07th June 2006, the trial Court passed an order against the petitioners (original 1st and 2nd defendants) directing that the suit be heard 2 without the written statement. An application was made by the petitioners at Exhibit 110 for setting aside the said order and for taking the written statement tendered alongwith the said application on record. On 17th December 2007, the said application was allowed subject to payment of costs of Rs.200/-. Thereafter, an application was made by the 1st respondent-original plaintiff at Exhibit 115 for setting aside the order dated 17th December 2007 passed below application at Exhibit 110. The main ground on which the said application was made is that the 1st respondent was not heard. The contention of the 1st respondent was that the application at Exhibit 110 was filed by the petitioners on 20th October 2007 after the suit was adjourned. The contention raised was that though the suit was adjourned to 20th December 2007, the application at Exhibit 110 was heard on 17th December 2007 and the same was allowed. The learned trial Judge on application at Exhibit 115 filed by the 1st respondent passed an order setting aside order dated 17th December 2007 passed on application at Exhibit 110. By a separate order passed on the same day, the 3 learned Judge rejected the application at Exhibit 110 and therefore this petition. 3. The learned counsel appearing for the 1st respondent opposed petition by pointing out that the application at Exhibit 110 was belatedly made. He pointed out that now recording of evidence has been completed and suit is at the stage of arguments. He submitted that considering the conduct of the petitioners, no interference is called for. 4. I have carefully considered the submissions. The application for setting aside ex-parte order was filed by the petitioners on 20th October 2007. Alongwith the said application, their written statement was tendered. As stated earlier, the suit was filed by the 1st respondent in June 2006. It is true that order on application at Exhibit 110 was set aside by the trial Court on the ground that the 1st respondent was not heard. Thereafter, when the said application was re- heard, the Court could have permitted written statement to be filed subject to payment of 4 costs. It must be stated here that as the said application at Exhibit 110 was filed, the hearing of the suit filed by the 1st respondent who is stated to be 94 years old person has been delayed. If Exhibit 110 would have been allowed, trial would have made some progress by now. Therefore, the 1st respondent will have to be compensated by ordering payment of substantial amount by way of costs which is quantified at Rs. 5,000/- 5. The petitioners will have to co-operate with the learned trial Judge for expeditious disposal of the suit and therefore the petitioners will not be entitled to seek any adjournment unless the ground for adjournment is really genuine. 6. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 09th January 2008 passed below Exhibit 110 is quashed and set aside. The said application stands allowed subject to petitioners paying costs of Rs.5,000/- to the 1st respondent within a period of four weeks from today. Deposit of 5 the amount of costs with the trial Court will be condition precedent. (b) It will be open for the learned trial Judge to frame additional issues on the basis of the written statement of the petitioners. (c) It will be open for the 1st respondent to lead further evidence, if any, in the light of the written statement of the petitioners. (d) It will be also open for the petitioners to apply for recalling the witnesses examined by the 1st respondent for cross-examination. (e) Considering the age of the 1st respondent, it is directed that the learned trial Judge will not grant adjournment to any party unless a really genuine ground is made out. (f) The learned Judge will give priority to the hearing of the suit and will ensure that the suit is disposed of as expeditiously as possible and in any event on or before 31st December 2009. (g) Writ petition is disposed of accordingly. (A.S.OKA,J)