1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO. 947 OF 2007 WITH CIVIL APPLICATION NO.1300 OF 2007 Asha Pravin Shah & Anr. ...Appellants. v. Smt. Prabhavati V. Gujarathi-Wani (Since deceased) through her Lrs Smt. Rekha Pradip Shah & Ors. ...Respondents. Mr.Sachindra B. Shetye, adv. For the Appellants. Mr.R.M.Pethe i/by R.S.Khadapkar, advs. For the Respondent Nos.1 to 3. CORAM : J.H. BHATIA, J. DATED : MARCH 23, 2010 P.C. 1 Heard the learned counsel for the Parties. 2 The deceased plaintiff, who was mother of the respondent no.1 to 3 and step-mother of the appellant no.1 had filed Special Civil Suit No.1041/05 for possession on the ground that the appellants/defendants were in occupation of the suit flat as her licensees. The suit summons were served but the defendants did not appear and ex- parte decree came to be passed on 14.12.2006. The appellants filed Miscellaneous Application No.330/07 for condonation of delay alongwith separate application for setting aside exparte decree. According to them, defendant no.1, who is the husband of the defendant 2 no.2 was suffering from high blood pressure and mental depression during the relevant period and the defendant no.2 was required to attend her daughter, who had delivered on or before 15.11.2005 and, therefore, they could not appear in the suit and thereafter, they did not come to know about the exparte decree. The leaned counsel for the plaintiffs/respondents also concedes that the suit summons was served on 11th October, 2005 but he is not aware about the date for appearance before the Court. The application was filed for setting aside exparte decree alongwith application for condonation of delay only after they came to know about the exparte judgment. The trial Court rejected application on very technical ground and about the strict proof of the dates of which defendant no.1 was not keeping well or the defendant no. 2 was required to attend her daughter during her maternity. Taking into consideration the fact that the defendants/appellants are admittedly in possession of the suit property for a very long time and the fact that separate partition suit is also pending between the parties, in my considered opinion, it will be in the interest of justice to condone the delay and to set aside exparte decree. The learned counsel for the defendants/appellants offered to pay reasonable cost for the same. Taking into consideration the nature of the property situated at Pune and 3 the rent which it may fetch, I pass the following order: i Appeal is allowed subject to the appellant paying cost of Rs. 25,000/- within four weeks from this date. Cost amount be deposited before the trial Court and shall be allowed to be withdrawn by the plaintiffs. The impugned order in the Miscellaneous Application No. 330/07 is hereby set aside. Delay is condoned and un-registered application for setting aside exparte decree is also hereby allowed. The decree passed in S.C.S. NO.1041/05 is hereby set aside and the suit is restored to the file of the Civil Judge Senior Division, Pune. Parties shall appear before the C.J.S.D., Pune on 28th April, 2010. Defendants shall file their written statement within four weeks thereafter. Trial Court shall expedite the hearing and dispose off the suit as far as possible by the end of 2010. Parties shall act on an authenticated copy of the order. 3 As the appeal itself is finally disposed off, Civil Application No.1300/07 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)