1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3187 OF 2008 Laxmibai w/o Babruwan Jodtale (deceased through Lrs.) Balaji s/o Babruwan Jodtale ...Petitioner Versus Thakubai w/o Shivaji Jodtale and Anr ...Respondents ..... Mr. A.M. Gaikwad, advocate for the petitioner Ms. Meera Biradar, advocate for respondent No. 1 ..... CORAM: S. S. SHINDE, J. DATED: 10TH SEPTEMBER, 2009 PER COURT:- 1 Heard. Rule. Rule made returnable forthwith. Matter is taken up for final hearing immediately. 2 This petition takes exception to the order dated 11.3.2008 passed by the Adhoc District Judge, Latur in an application below Exh. 27 in R.C.A. No. 98 of 2006. 3 Learned counsel appearing for the petitioner invited my attention to the para 7 of the impugned order and submitted that the findings 2 recorded by the court in the said para that, 'to give weightage to the contention of respondent No.1, the respondent No.1 did not file affidavit of concerned advocate,' is contrary to the record. Learned counsel submitted that the affidavit of the advocate was filed on 19.12.2007 and the same was exhibited as Exh.34. Therefore, learned counsel would submit that when the affidavit of the advocate was filed and same was accepted, the findings recorded that no affidavit of the advocate is filed, is perverse. Therefore, the matter may be remitted back to the court for fresh hearing. 4 On query by this court, learned counsel appearing for the respondent fairly concedes that the affidavit of the advocate is part of record and the same is exhibited as Exh.34 in the record of the Court. However, learned counsel submitted that apart from that, on merit, the court has adjudicated issue involved and came to the definite conclusion. Therefore, the impugned order may not be interfered with. Learned counsel for the respondent also relied on the averments in the affidavit and submitted that the writ petition is devoid of any merits the same may be dismissed. 5 After hearing counsel appearing for the petitioner as well as respondent No.1 and on perusal of the impugned order, the findings recorded by the court below that the affidavit of the advocate was not filed by respondent No.1 is contrary to the record and the same is 3 perverse and on this ground alone, the impugned order is set aside leaving all contentions of the parties open on merits of the matter. The petition is partly allowed. The matter is remitted back to the trial court for fresh adjudication and the trial court to give full hearing to the parties on merits of the matter. It is made clear that this Court has not expressed any opinion on merits of the matter. There shall be no order as to costs. 6 Since considerable time has been consumed from the date of passing of impugned order, the trial court is directed to decide the application within one month from the date of receipt of order of this Court. (S.S. SHINDE, J.) rlj/