1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 655 OF 2009 Satyawati w/o Mohan Divate & others .. APPELLANTS VERSUS Mahadeo s/o Jyoti Fadtade & others .. RESPONDENTS Mr. R.P. Bhumkar, Advocate for the appellants. Mr. R.F. Totala, Advocate for respondent no. 1. Mr. P.S. Pawar, Advocate for respondent nos. 2 to 4. ===== CORAM : R. M. BORDE, J. DATE : 2 nd MARCH, 2010 PER COURT : 1 The instant appeal is presented raising exception to the order passed in Misc. Application no. 62/2008 decided by the District Judge -1, Majalgaon on 13-4-2009. Suit presented against the appellants being Regular Civil Suit no. 15/2001 came to be decreed ex-parte by the trial court in view of judgment and decree dt. 8-6-2006. Appeal was presented with a request to set aside the ex-parte decree passed by the trial court. Simultaneously, an application also appears to have been presented by the appellants to the 2 same court requesting for setting aside the ex-parte decree. However, it appears that the fact of presentation of application was not disclosed before the appellate court dealing with the Misc. Civil Application no. 62/2008. There occurred some delay in presenting the application. As such, application seeking condonation of delay was rejected by the first appellate court. 2 A bold statement is made in affidavit presented by the appellants that the appellants infact did not present the Misc appeal and the application seeking condontion of delay before the first appellate court and it was presented by some other person with an ulterior motive in the name of the appellants. Allegations made before this court are denied by the respondents / original plaintiffs by filing affidavit in reply. In order to assess the correctness of the allegations contained in the affidavit tendered by the appellants, record and proceeding was called. At this stage, learned counsel for the appellants requests for withdrawal of the Misc. application itself as well as the instant second appeal. Appellants contend that they may be given liberty to prosecute the misc. application presented to the trial court. Learned counsel for the appellants also contends that he would not press the allegations made by him in the affidavit. Learned counsel for the 3 respondents vehemently opposes the request made by the appellants and, in the alternative, makes a statement that if the prayer is to be accepted, heavy cost may be imposed. 3 Considering the contentions raised by the respective counsel appearing for the parties and considering the facts of the instant appeal, I am of the opinion that the appellants who are the ladies are needed to be extended further more opportunity to place their contentions before the trial court. However, as the appellants have made false allegations against the respondents / original plaintiffs and are also instrumental in setting in motion the machinery of this court, they are required to be penalised by imposing cost. Request made by the appellants is considered subject to payment of cost of Rs.5,000/-. Appellants are permitted to withdraw the misc. appeal presented to the first appellate court as well as the application seeking condonation of delay so also the instant second appeal subject to payment of cost of Rs.5,000/- payable before the trial court within a period of six weeks from today. In the event of failure to deposit the cost as directed, the instant second appeal shall be deemed to have been dismissed. Appeal stands dismissed as withdrawn. 4 4 In view of disposal of the appeal, interim relief stands vacated. 5 In view of disposal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa655.09.ofy