- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3278 OF 2006 Radhabai G. Patil & Ors. Petitioners Vs. Dwarkibai S. Patil Respondents through L.Rs. & Ors. Mr. Vaibhav Patankar, Advocate for the petitioners. None appeared for the respondents. CORAM : S. C. DHARMADHIKARI, J. DATE : FEBRUARY 18, 2008 PC . This Writ Petition was argued on 11th February 2008. But although the appearance for the respondents was shown on that day, none appeared for them. Today also nobody is appearing for them. 2. The Writ Petition is directed against the order passed by the Civil Judge, J.D. Bhivandi on 24th January 2006 in Misc. Appln. No.126 of 2003. The application which is filed under Order 9, Rule 9 of the Civil Procedure Code, was delayed by about 5 months and 24 days. - 2 - Therefore, another application was made seeking condonation of delay. The application for condonation having been dismissed, now, the main application also would not survive is the submission. 3. The grievance is that Regular Civil Suit No. 232 of 1998 was filed by the original plaintiffs/ petitioners before me on 9th of April 1998. Issues were framed on 16th of March 2001. From a perusal of the record and roznama, it is revealed that the original plaintiffs failed to examine any witness and therefore, suit was dismissed in default on 5th of July 2003. The Application to set aside the order of dismissal is filed on 5th December 2003 and it was delayed, hence, an application for condonation of delay was filed. The reason assigned was that the petitioners are ladies. They had fully relied upon the Advocate. They were all the time inquiring with the advocate, but no reply was given and when further inquiries were made on 15th of December 2003, the original plaintiff No.3 was called by the advocate Mr. B. T. Tawade in his office and was informed that the suit was dismissed. Thereafter, the plaintiff - 3 - contacted another advocate and filed an application. They have pointed out that the delay cannot be said to be such as would be fatal to the main request. The learned Judge has decided the delay condonation application by applying the same test as would be required to be applied for setting aside the order of dismissal of the suit. The learned Judge ought to have applied his mind as to whether the delay deserves to be condoned and whether there is sufficient cause for the same. If the petitioners cannot be said to be Negligent or the application made by them is not lacking in bona fides, then, by imposing costs, the delay could have been condoned. The learned Judge has erred in taking a hyper-technical view. If the learned Judge has referred to the power of attorney, then, it is apparent that he was to conduct the proceedings and depose as well. In the circumstances, while taking a lenient view, the delay could have been condoned. 3. None is appearing for the respondents, despite notice, and despite Vakalatnama being filed on their behalf to oppose this application. In such circumstances, the order under challenge - 4 - is set aside. The delay in filing the applicaton under Order 9, Rule 9 of C.P.C. is condoned. However, the plaintiffs to pay costs quantified at Rs.1,000/- to the contesting defendants in the Trial Court. The costs to be paid within two weeks from today. If the costs are paid and proof is tendered, then, the trial Court to restore the Miscellaneous Application No. 126 of 2003 to its file and hear & dispose of the same in accordance with law, uninfluenced by any observations in the impugned order. Sd/- [ S.C. DHARMADHIKARI J.]