1 W.P.No.9276/10 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.9276 OF 2010. 1. Bhagirathibai W/o Damu Keshare, Age 70 years, Occ.Household, R/o Village Chincholiraowadi, Tq. and Dist.Latur. 2. Kaushalyabai W/o Mohan Deokate, Age 60 years, Occ.Household, R/o Bhusani, Tq.and Dist.Latur.... Petitioners. Versus 1. Kalubai W/o Hariba Phule, Age 55 years, Occ.Household, R/o Bhusani, Tq.and Dist.Latur. 2. Nilubai W/o Narsing Bombalge, AGe 39 years, Occ.Household, R/o Akharwai, Tq. and Dist. Latur. 3. Haridas S/o Pandurang Baykare, Age 57 years, Occ.Agriculture, R/o Takali (B), Tq. and Dist. Latur. 4. Venkat S/o Shrirang Baykare, Age 49 years, Occ.Agriculture, R/o as above. 5. Namdeo S/o Shrirang Baykare, Age 39 years, Occ.Agriculture, 2 W.P.No.9276/10 R/o as above. 6. Parwati W/o Shrirang Baykare, Age 69 years, Occ.Agriculture, R/o as above. ... Respondents. ... Mr.C.R.Deshpande, advocate for the petitioners. Mr.V.B.Dhage, advocate for Respondent Nos.1 and 2. Mr.A.M.Gaikwad, advocate for the Respondent No.3. ... CORAM : S.V.GANGAPURWALA,J. Date : 16.06.2011. ORAL JUDGMENT : 1. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 2. The present Respondent Nos.1 and 2 have instituted suit for partition and separate possession. The present petitioners are arrayed as defendants Nos.6 and 7. The summons were served on the petitioners, they remained absent. As such exparte order was passed against them. The plaintiffs had commenced their evidence. 3 W.P.No.9276/10 Thereafter, the present defendants appeared, filed an application for setting aside exparte order and for filing the written statement. The trial Judge rejected the said application. Aggrieved thereby, the present petition is filed. 2. Mr.Deshpande, learned counsel for the petitioners submits that in fact, it is a suit for partition and separate possession, where each and every party is in the capacity of plaintiff. In such circumstances, the Court could not have adopted such a hypertechnical approach. Even otherwise, the petitioners are entitled to participate in the proceedings from the stage when they appeared. The petitioner No.1 is 70 years old and petitioner No.2 is 60 years of age. The petitioner No.1 is hard of hearing. They are not keeping good health and as such could not appear and participate in the proceedings. The suit is a substantive suit and the right of the petitioners in an immovable property is involved. As such liberal approach is also be taken. 3. Mr.Gaikwad, learned counsel for the 4 W.P.No.9276/10 plaintiffs submits that the perusal of the application, it is manifest that no cause much less a sufficient cause is shown for non- appearance earlier. Even the plaintiffs have led their evidence. When the suit is for partition and separate possession, the shares of each and every person is carved out. Even otherwise the branch of petitioners is represented. The trial Court taking into consideration all the aspects has properly rejected the application. 4. The suit is pending. As such the petitioners are entitled to participate in the proceeding as of right from the stage when they appeared. Perusal of the application, it is manifest that petitioners are age old ladies and housewives. The petitioners have submitted that at the relevant time,the petitioner No.1 was sick due to Chikanguniya and she had taken treatment in the village. There is nothing to disbelieve the same. Moreover,the suit is for partition and separate possession, wherein the rights of the petitioners in an immovable property are involved. For the delay that would be caused by 5 W.P.No.9276/10 accepting the written statement of the petitioners, the plaintiffs can be compensated by costs. 5. In light of the above, I quash and set aside the impugned order and allow the application Exh.64 in RCS No.122/2007 on condition that the petitioners pay costs of Rs. 3,000/- (Rupees three thousand) to the plaintiffs within a period of four (4) weeks from today. If the written statement is not filed, the petitioners shall file the said written statement within a period of four (4) weeks from today. 6. Rule made absolute in above terms. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp9276.10 6 W.P.No.9276/10