rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL NO.2153 OF 2006 APPEAL NO.2153 OF 2006 APPEAL NO.2153 OF 2006 Mrs.Phyllis Monteiro & Ors. .. Appellants Vs. Miss.Josephine George & Ors. .. Respondents Mr.B.H.Vyas for the Appellants. Mr.A.M.Vernekar for Respondents. CORAM : A.P.DESHPANDE, J. CORAM : A.P.DESHPANDE, J. CORAM : A.P.DESHPANDE, J. DATED : 15TH JANUARY, 2009 DATED : 15TH JANUARY, 2009 DATED : 15TH JANUARY, 2009 P.C. P.C. P.C. . Heard finally by consent of the learned counsel appearing for the respective parties. The Appellants are the original Plaintiffs. The Appellants instituted a suit in City Civil Court at Bombay against the Respondent/Defendants for declaration and permanent injunction so also mandatory injunction. The subject matter of the suit is a flat admeasuring about 600 sq.feet. During the pendency of the suit an application could be moved to the Plaintiffs with a view to have a receiver appointed on 2nd September, 2004. The court appointed a receiver and the premises came to be handed over in possession of the Court Receiver. Since than the premises are sealed and in possession of the receiver. ( 2 ) 2. In the above set of facts the suit has been dragged from the year 2001 till passing of the impugned order whereby the Trial Court dismissed the suit of the Plaintiffs by order dated 16th June, 2006. The impugned order, if perused reveals that the Plaintiffs were found to be deliberately protracting the Trial and on that count the Defendants were harassed. It is also observed in the said order that though Plaintiff No.2 is present in the Court on 16th June, 2006, he was asked for an adjournment with a view to engage another counsel as he wanted to change the earlier counsel. The Trial Court found that initially adjournment were sought on the ground of settlement and therefore the Appeal was delayed, being of the view that the Defendant who is aged more than 70 years is being harassed by protracting the proceedings of the suit. The Court concluded that the Plaintiffs are not interested in prosecuting the suit and are causing harassment to the Defendants unnecessary, has dismissed the suit. It is this order the legality and propriety this question by filing the present appeal. By the impugned order the Court below has imposed a cost of Rs.10,000/- payable by the Plaintiffs to each of the Defendants aggregating a sum of Rs.40,000/-. ( 3 ) 3. The learned counsel for the Appellants submits that the impugned order would passed in violation of principals of natural justice in as much as a reasonable opportunity has been denied to the Appellants/Plaintiffs. It is also submitted that exorbitant costs has been saddled on the Plaintiffs while dismissing the suit. The learned counsel for the Appellants submits that Appellants be granted one more opportunity to prosecute the suit as otherwise in the submission of the learned counsel, the Appellants will put to suffer irreparable loss. The same causing without undue hardship. Per contra, the learned counsel for the Respondents has submitted that since beginning the Plaintiffs have been trying to protract the proceedings of the suit. He has submitted that though the Trial Court has appointed the receiver on an application moved by the Plaintiffs, the Plaintiffs themselves challenged the said order by moving the High Court. This submission is made to impress upon the Court that there is a deliberate attempt on the part of the Appellants to prolong the proceedings. The learned counsel for the Respondents has submitted that no interference with the impugned order is called for. 3. Perusal of the order reveals that the ( 4 ) adjournment sought by the Plaintiffs was third adjournment and the Court could have granted the adjournment by saddling heavy costs which would have restrained the Plaintiffs from seeking the further adjournment. However, the Court on the one hand rejected the adjournment and dismissing the suit whereas on the other hand also proceed to saddled a costs of Rs.40,000/- which I understand as costs having saddled and quantified the costs in the suit guilt as it may. Rs.40,000/- by way of Defendants/Respondents if the suit is restored to file by setting aside the impugned order, the same would subserved the needs of Justice. Thus, making the payment the costs condition president, I am inclined to set aside the impugned order and restored the suit to the Appeal. 4. The learned counsel for the Appellants on instruction from Plaintiff No.2 who is present in the Court makes a statement that henceforth no adjournment will be sought by the Plaintiffs before the Trial Court and the Plaintiffs would co-operate in expeditious disposal of the suit. The statement is accepted. In the result, the Appeal is allowed. The said suit is restored to the file of City Civil Court subject to the condition that the ( 5 ) Appellants/Plaintiffs should pay the costs of Rs.10,000/- to be paid to each of the Defendants totally Rs.40,000/- within a period of one month form today. 5. In the event of the failure on the part of the Plaintiffs/Appellants to pay the costs as directed shall resulting revocation of this order and restoration of the order passed by the Trial Court dated 16th June, 2006. 6. The parties shall appear before the Trial Court on 9th February, 2009. I hope and thinks that the Trial Court shall make all the endeavour to decide the suit as expeditiously as possible preferably within a period of three months from the date on which the parties would be appearing before the Trial Court. (A.P.DESHPANDE, J.) (A.P.DESHPANDE, J.) (A.P.DESHPANDE, J.)