1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4576 OF 2007 Jayashri Vikas Wagh & Ors. ..Petitioners. V/s. Subhash Chhagan Maruti Wagh & Ors. ..Respondents. Mr.S.K.Shinde i/b. Sagar Kasar for petitioners. Mr.N.V.Bandiwadekar for Respondent Nos. 1 to 5. CORAM: A.A.SAYED,J CORAM: A.A.SAYED,J CORAM: A.A.SAYED,J DATE : JUNE 12, 2008. DATE : JUNE 12, 2008. DATE : JUNE 12, 2008. P.C. : P.C. : P.C. : 1. This Writ Petition is directed against the Order dated 12th April, 2007 passed by the Civil Judge, Senior Division, Nashik, whereby the Application of the Petitioners for restoration of the another Application, which was filed for restoration of the Suit, came to be dismissed. 2. The Application for restoration of the Application was dismissed on 10th February, 2006 and the Application for restoration of this Application was made on 7th March, 2006. The learned trial Judge has rejected the Application on the ground that the very same reasons have been given as given in the Application which was filed for restoration of the 2 Suit for the cause for non-appearance and rejected the application. Hence this Writ Petition. 3. The learned Counsel for the Petitioners has stated that the Petitioner No.1 is widow and she has filed this Petition for partition against her in-laws and that since she is working with the Nashik Municipal Corporation, the fact that she was not granted leave by the Corporation on both the occasions cannot disbelieved. 4. The learned Counsel for the Respondents on the other hand, has supported the impugned order and submitted that as the trial Court has exercised its discretion in rejecting this application, this Court should not interfere with the impugned Order. 5. I have perused the impugned order. I find that what is weighed with the trial Court is that the Petitioner has not filed a copy of the application for leave given to the Nashik Municipal Corporation. Merely non-filing of the copy of the application for leave and/or the fact that the same ground was also taken in the earlier Application, could not be reason for rejecting the application of the Petitioners. The Application is made within 27 days. In my view, 3 in the interest of justice, Application ought to have been allowed, particularly when the Application was made within 27 days. The delay is not such, which could not have been condoned, and the Respondents could have been compensated by awarding costs. 6. Consequently, the impugned Order is set aside. Petitioners to pay cost of Rs.1,000/- to the Respondents. Costs are condition precedent. The Trial Court to then proceed to decide the Application for restoration of Suit. 7. Writ Petition is disposed of. (A.A.SAYED,J) (A.A.SAYED,J) (A.A.SAYED,J)