1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4170 OF 2009 1 Ganesh s/o Parmeshwar Gosalwad age 15 years, occ. minor Under Guardianship of his mother Radhabai w/o Parmeshwar Age 40 years, occ. agriculture r/o Pawana, Tq. Himayatnagar Dist. Nanded. 2 Parmeshwar s/o Laxman Gosalwad age 45 years, occ. agriculture r/o Pawana, Tq. Himayatnagar Dist. Nanded. 3 Radhabai w/o Parmeshwar Gosalwad age 40 years, occ. agriculture r/o Pawana, Tq. Himayatnagar Dist. Nanded. .. PETITIONERS VERSUS Manohar s/o Laxman Gosalwad age 32 years, occ. agriculture r/o Pawana, Tq. Himayatnagar, Dist. Nanded. .. RESPONDENT Mr. A.S. Deshmukh, Advocate for the petitioners. Mrs. S.G. Chincholkar, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 29 th APRIL, 2010 ORAL JUDGMENT : 2 1 Heard. 2 Rule. With the consent of the parties the matter is taken up for final disposal at admission stage. 3 Petitioners / original defendants are raising exception to the order passed by the Civil Judge, Jr. Dn., Himayatnagar on 26-9-2008 in Regular Civil Suit no. 28/2003. 4 It is not necessary to go into the factual aspects of the matter. Suffice it to note that while dealing with Writ Petition no. 5607/2006, on 17-1-2008, this court directed the trial Judge to consider the aspect of permissibility to set aside earlier order passed on 7-2-2006 whereby the trial court had directed forfeiture of the right of the plaintiff to lead evidence. Trial court, without setting aside the earlier order dt. 7-2-2006, forfeiting right of the plaintiff to lead evidence, proceeded to permit the plaintiff to examine one witness on her behalf and said order was subjected to challenge in the petition before this court on earlier occasion. While setting aside said order passed below exh. 74 in Regular Civil Suit no. 28/2003, this court has passed order as stated above. After disposal of writ petition by this court, application tendered by 3 the plaintiff for setting aside order passed on 7-2-2006 whereby right of the plaintiff to adduce evidence was forfeited, was taken up for consideration by the trial court. On the prescribed date i.e. on 26-9-2008, both the parties and their counsel were absent. However, trial court proceeded to allow the application subject to payment of cost of Rs.200/-. 5 I have heard learned counsel for the respective parties. Perused the application as well as impugned order. It was not permissible for the trial court to allow the application in the absence of the parties. This court while disposing of Writ Petition no. 5607/2007 has directed trial court to dispose of the application on its own merit. It is also observed in the order that it was not permissible for the trial court to permit the plaintiff to lead evidence without considering permissibility of revoking the earlier order dt. 7-2-2007. Trial court was supposed to consider the contentions raised by the plaintiff in his application and was also supposed to ascertain as to whether the grounds stated in the application are proper and sufficient to pass order as prayed for by the plaintiff. Order passed on 26-9-2008 is non-speaking order and does not spell out any reason for allowing the application. It was also not proper on the part of the trial court to allow the application in the absence of both the parties. Without dealing with the merits of the 4 contentions raised in the application, the non-speaking order passed on 26-9-2008 by the Civil Judge, J.D., Himayatnagar in Regular Civil Suit no. 28/2003 therefore is liable to be quashed and set aside and the same is accordingly quashed. Trial court shall proceed to hear the parties in respect of application tendered at exh. 82 and pass appropriate order after considering the rival contentions of the parties. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/wp4170.09.odt