*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7923/2008 Yashoda Yadav (Decd.) and others. ..Petitioners -VERSUS- Sumit Mangal Jain and others. ..Respondents ............... Mr.S.Y.Katkade a/w V.Nirmala Gopal, Advocates for the Petitioners. Mr.Ketan Joshi, Advocate i/b Ms.Neeta Karnik, Advocate for the Respondents Nos.1 to 4. ............... CORAM: A.P. DESHPANDE, J. Dated 18th November, 2009. PC:- 1 Rule. Rule made returnable forthwith. Taken up for final hearing by consent of the parties. 2 The original Plaintiff-Yashoda Yadav (since deceased) filed a suit for declaration of title and perpetual injunction in respect of the suit property. The original Plaintiff expired on 14.06.2007, hence, the legal heirs of the deceased Plaintiff moved two applications one for bringing legal heirs on record and the second for condonation of delay and setting aside the abatement. Both the applications were allowed subject to payment of costs of Rs.200/- for each application vide order dated 02.02.2008. Thereafter, the matter came to be adjourned by the Trial Court to 04.08.2008. It is *2* the case of the Petitioners/ Plaintiffs that they had deposited the amount of costs with their Advocate. As some relative of the Advocate has expired at Mumbai, therefore, the Advocate was not present at Palghar and was at Mumbai. Hence, no one was represented on behalf of the Petitioners/ Plaintiffs on 04.08.2008 and the costs also could not be deposited. In that situation, the Court dismissed the suit as abated solely on the ground of non payment of costs. 3 It is pointed out from the order dated 02.02.2008 that no time frame was stipulated for payment of costs, as such, the cost was expected to be paid within a reasonable period. For the reason that the Advocate for the Plaintiffs was not in town on 04.08.2008, he could neither deposit the costs nor could seek extension of time to deposit the same. According to the learned counsel for the Petitioners, the Petitioners would be put to suffer irreparable loss and undue hardship and inconvenience if the suit is not restored to file as the suit pertains to declaration of title. It is also submitted that the suit cannot abate for non payment of costs as the abatement was already set aside. 4 Per contra, the learned counsel for the Respondents has submitted that on account of negligence on the part of the Petitioners in depositing the costs the suit has been dismissed as abated and the Respondents are made to litigate before this Court. Hence, on account of protracted litigation before this forum, the learned counsel for the Respondents submits that in the event if the petition is to be allowed and the suit is to be restored, the same should be subject to payment of costs to the Respondents. *3* 5 I am of the clear view that the ends of justice would be sub-served by setting aside the impugned order dated 04.08.2008 and restoring the suit to file which has been dismissed for non deposit of costs of Rs.200/- on each applications (total Rs.400/-). 6 In the result, I pass the following order:- (a) The impugned order dated 04.08.2008 is quashed and set aside. (b) The suit is restored to file. (c) The Petitioners shall deposit the amount of costs of Rs. 400/- under order dated 02.02.2008 in the Trial Court within a period of two weeks from today. (d) The Petitioners shall also pay the cost of this Writ Petition to the Respondents which is quantified in a sum of Rs. 3000/- (Rupees Three Thousand only) within a period of two weeks from today. (e) Rule made absolute accordingly. (A.P. Deshpande, J)