1 wp6759.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6759 OF 2010 Hasmukhbhai Ravjibhai Kuvar ...Petitioner vs. Kuvarben wd/o Chabildas Patel and others ...Respondents Mr.M.P.Vashi i/b M/s.M.P.Vashi & Associates for the petitioner Mr.R.A.Thorat, Sr.Advocate i/b Mr.P.J.Thorat for the respondent Nos.1,2,4,5,6 and 7. CORAM :A.S.OKA,J. DATE : OCTOBER 7, 2010 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent nos.1,2,4, 5 to 7 and 7` who states that the Vakalatnama of the 3 rd respondent will be filed within a period of two weeks from today. The parties were put to notice that the petition will be decided finally at the stage of admission. 2 The petitioner is the defendant in a suit for possession filed by the respondents in the Court of Small Causes. The suit relates to the residential premises. Decree was passed by the Court of Small Causes on 15 th April 2004. On 11 th February 2005, an application purporting to be an application/notice under Rule 13 of Order IX of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) was filed by the petitioner. The first prayer in the said application was for condonation of delay and the second prayer was for setting aside the alleged ex-parte decree. By the 2 wp6759.sxw impugned order dated 21 st April 2005, the learned trial Judge dismissed the said notice and the said order has been confirmed in appeal. Perusal of the order shows that the notice has been dismissed mainly on the ground that there is no explanation for delay. 3 The learned counsel for the petitioner submitted that the delay was adequately explained in the notice, and a medical certificate was produced along with the notice. He submitted that justice oriented approach ought to have been adopted by the trial Court. The learned counsel for the respondents submitted that notice/application under Rule 13 of Order IX of the said order was not maintainable and in absence of any explanation for delay, notice has been rightly dismissed. 4 I have carefully considered the submissions. Following was the point for determination framed by the learned trial Judge: Whether the Defendant no.1(b) is entitled for a relief to set aside ex parte decree passed on 15/4/2004 by condoning the delay ? 5 I find that the approach of the learned Judge is erroneous. The learned Judge ought to have considered the prayer for condonation of delay at the outset and only if the delay was condoned, the learned Judge could have taken up for hearing the prayer for setting aside the decree. 6 In the application taken out by the petitioner, it is stated that on 15 th April 2004, the petitioner was unable to attend the Court as he was suffering from 3 wp6759.sxw attack of `Asthama . Reliance is placed on a certificate of the Medical Practitioner annexed to the application. It is alleged that the defendant no.1A had died before passing the decree and after the demise of the said defendant, the petitioner had approached the respondents for settlement. It is alleged that in the first week of March 2004, the 2 nd and 4 th respondents approached the petitioner and expressed that they want to withdraw the suit. In paragraph 7 of the application, it is stated that the petitioner became aware of the decree when notice of execution was served at the address of the suit premises. Thereafter, in the same paragraph 7 and subsequent paragraphs, the petitioner has set out as to how she approached an Advocate. It is also disclosed as to why the application could not be filed immediately even after approaching the Advocate. The case made out regarding settlement has been disputed by the respondents. Nevertheless, the averments made in the paragraphs 2,7,8 and 9 clearly make out a case for existence of sufficient cause for condonation of delay. It is well settled that while dealing with the prayer for condonation of delay, a liberal and justice oriented approach has to be adopted. The decree is in respect of the residential premises consisting of area of 200 sq.ft. The trial court could have compensated the respondents by ordering payment of suitable amount by way of costs. The amount of costs in this petition is quantified at Rs. 10,000/-. 7 Hence, I pass the following order : i) Impugned orders are quashed and set aside and the delay in filing the Misc. notice no.230 of 2005 is condoned. ii)The trial court will decide the Misc. Notice no.230 4 wp6759.sxw of 2005 as expeditiously as possible and in any event within a period of six months from today. iii)It is made clear that the issue of maintainability of the notice taken out by the petitioner is kept open. iv)The petitioner will pay costs of Rs.10,000/- to the respondents within a period of four weeks from today. Payment of costs will be a condition precedent. v) It is made clear that the observations made in this order are confined to consideration of the prayer for delay condonation and the trial Court will decide the prayer for setting aside exparte decree on its own merits without being influenced by the observations made by this Court. vi)The petition is partly allowed on above terms. JUDGE