1 ca759-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 759 OF 2011 Mr. Yedu Yesu Nile .. Petitioner Versus Piraji Santaram Dhobale Since Deceased, through legal heirs and others ... Respondents Mr. Umesh R. Mankapure for the petitioner Mr. Ajay A. Joshi for Respondent nos. 1, 1(a), 1(b), 1(c) and 2. CORAM : R. Y. GANOO, J. DATED : 3rd October, 2011 P.C. 1. Rule. Rule made returnable forthwith. Learned advocate Mr. Joshi appearing on behalf of represented nos. 1, 1(a), 1(b) and 1(c) and 2 waives service. As these respondents are the contesting respondents, presence of Sarubai who is respondent no.3 is not required for deciding this petition. 2. The petitioner was directed to pay cost of Rs.350/- for the purpose of granting Misc. Civil Application No.115 of 2010 by order dated 23rd September, 2010. That cost was to be deposited on or before 8th October, 2010. The Misc. Civil Application No. 115 of 2010, filed for condonation of delay, was 2 ca759-11 dismissed for non payment of cost on 8th October, 2010 and thereafter, the present petitioner filed an application under section 151 of the Code of Civil Procedure. That application was disposed of by observing that that it is not maintainable under section 151 of the CPC. 3. Looking to the facts and circumstances of the case, I am inclined to observe that the impugned order dated 6th December, 2010 passed by the learned District Judge-I, and Additional Sessions Judge, Sangli is required to be set aside, primarily on the ground that the learned Judge should have taken up a practical view of the mater and by imposing cost, the application should have been disposed of. In my view, the delay occasioned in non compliance with the order dated 23rd September, 2010 can be compensated by directing the petitioner to pay to respondent Nos. 1(a), 1(b), 1(c) 1(d) and respondent no.2 cost of Rs.2000/- in addition to cost of Rs.350/- which were ordered by the learned District Judge. Hence the petition is disposed of by the following order. i. The order dated 6th December, 2010 passed by the learned District Judge and additional sessions Judge, Sangli is set aside. ii. The application for condonation of delay is granted. iii. The petitioner to pay to respondent Nos. 1(a), 1(b), 1(c), 1(d) and respondent no.2, Rs.2000/- in addition to cost of Rs.350/-. These costs shall be deposited in the Court of learned District Judge, Sangli on or before 14th October, 2011. If such cost is deposited on or before 3 ca759-11 14th October, 2011, the Misc. Civil Appeal be taken up for hearing after following normal procedure. iv. The cost of Rs.2350/- which will be deposited pursuant to this order in the court of District Judge-I be paid to respondents without security or guarantee. If costs are not deposited as aforesaid, the appeal filed by the present petitioner would not be proceeded and the order dated 8th October, 2010 of dismissal shall stand. v. Trial court to act on authenticated copy of this order. (R. Y. GANOO, J.)