1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4870 OF 2009 Sureshchandra s/o. Vasudeo Bhandari ....Petitioner. Versus Smt. Sushilabai w/o. Vasudeo Bhandari and Others ....Respondents. Shri. Sureshchandra Vasudeo Bhandara, petitioner- in - person, present. Shri. S.P. Brahme h/f. Shri. S.S. Mundhe, Advocate for respondent Nos. 2 and 3. CORAM : R.K. DESHPANDE, J. DATE : 26th July, 2010. PER COURT : 1. This writ petition challenges the order dated 12.3.2009 passed by the learned District Judge - 2, Jalgaon, dismissing the Misc. Civil Appeal No. 8/2007, filed by the petitioner. The petitioner had filed Regular Civil Suit No. 329/1989 for partition and separate possession in respect of the suit property. The Trial Court dismissed the said suit on 18.10.1997 and the said order is also the subject matter of challenge in this petition. 2. Notice in this matter was issued on 18th of November 2009. The learned counsel Shri. S.S.Mundhe holding for Shri. S.P. Brahme, appears for respondent Nos. 2 and 3. The other respondents are served, however, none appears for them. In view of the fact that the notice was issued in 2 this matter and not the notice before admission, no fresh notices are required to be issued to the other respondents, who are already served. The petitioner appears in person and the matter is heard finally by consent of parties. 3. The petitioner filed Regular Civil Suit No. 329/1989 for partition and separate possession. It seems that there were more than 20 defendants in the suit. The name of the defendant Nos. 19, 20, 21 were deleted. The suit proceeded against the defendant Nos. 1 to 9 and 11 to 18 and the defendant No. 22 was added. The defendant Nos. 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17 and 18 were served. However, they failed to appear before the Court. Hence, the matter proceeded exparte against those defendants on 19.2.1996. It seems that the plaintiff filed an application for amendment of the plaint, which was allowed by the order passed below Exh. 66 with the cost of Rs. 500/-. The plaintiff seems to have failed to deposit the said cost within stipulated period. When the suit was called out for hearing on 13.8.1997, none of the parties were present before the Court. Hence, the suit was dismissed under Order 9, Rule 3 of Civil Procedure Code and it was held that the plaintiff shall not be entitled to recover the Court Fees as per Rules. 4. The plaintiff preferred application on 13.7.1998 for restoration of suit and condonation of 8 months delay. The said application was dismissed on 20.1.2007. The plaintiff preferred Misc. Civil Appeal No. 3 8/2007, which also came to be dismissed by the judgment and order dated 12th of March 2009 by the learned District Judge -2, Jalgaon. Hence, this petition is preferred by the original plaintiff. 5. The plaintiff also preferred Regular Civil Suit No. 214/1999 along with one Pramod Rajaram Pithdi for partition and separate possession. It was filed on 20.11.1999. The proceedings of the said civil suit are stayed, as has been informed by the learned counsel appearing for the respondent Nos. 2 and 3. 6. The question involved in this petition is, whether the Trial Court was right in dismissing the application for condonation of 8 months delay, caused in filing an application for restoration of the suit, which was dismissed under Order 9, Rule 3 of CPC by the Trial Court on 18.10.1997. The petitioner, appearing in person, submits that he was prepared to pay an amount of Rs. 500/- towards the cost, which was made payable, on allowing his application for amendment and accordingly, he had instructed his counsel to seek extension of time to deposit the said amount. He submits that at any rate, the Court could not have dismissed the suit for non payment of Rs. 500/- towards the cost, for allowing the application for amendment. According to the petitioner, the Appellate Court has committed an error in dismissing the appeal, on the ground that the petitioner has failed to make out sufficient cause for condonation of delay and restoration of suit. The 4 petitioner makes a statement that he is prepared to withdraw his name from the Regular Civil Suit No. 214/1999 as plaintiff and he would like to prosecute the Regular Civil Suit No. 329/1989. The Regular Civil Suit No. 214/1999 was filed on 20.11.1999 after the dismissal of application for condonation of delay and for restoration of suit by the Trial Court. 7. After hearing the petitioner in person, the learned counsel appearing for the respondent Nos. 2 and 3 and after going through the orders passed by the Courts below, in my opinion, the Courts below have exercised the jurisdiction with material irregularities, resulting in failure of justice. The Trial Court, in its order dated 18.10.1997, dismissing the suit, has observed that all the respondents were served, but they did not appear and the matter proceeded against them exparte on 19.2.1996. Simply because the suit was pending since 1989 and no steps were taken to pay the cost of Rs. 500/-, awarded for allowing the application for amendment, the suit should not have been dismissed. It appears that there were more than 20 defendants in the suit and hence, the time was spent in serving the defendants. The petitioner has made out sufficient cause for condonation of delay of 8 months and restoration of suit. The Appellate Court ought to have seen that the suit should not have been dismissed for non payment of Rs. 500/- towards cost for allowing application for amendment. The Appellate Court has failed to apply its mind to the relevant aspects of the matter. Both the Courts have exercised its jurisdiction with material irregularities, resulting in failure 5 of justice. The orders passed, therefore, cannot be sustained. 8. In the result, the instant writ petition is allowed. The order dated 12.3.2009 passed by the District Judge -2, Jalgaon, dismissing the Misc. Civil Appeal No. 8/2007 is quashed and set aside. The order dated 18.10.1997 passed by the Trial Court, dismissing the suit along with the order on application for condonation of delay and restoration of suit dated 20.1.2007 are also quashed and set aside. Regular Civil Suit No. 329/1989 is restored to file. The petitioner is permitted to pay cost of Rs. 500/- in the Trial Court within a period of two weeks, with effect from 23rd August 2010, when the petitioner shall appear in person before the Trial Court. The plaintiff has given oral undertaking before this Court to withdraw his name as plaintiff from Regular Civil Suit No. 214/1999. Accordingly, he is granted liberty to file such an application before the Trial Court for withdrawal of his name from the said suit. The Trial Court is directed to decide this Regular Civil Suit No. 329/1989 as expeditiously as possible. No orders as to costs. [ R.K. DESHPANDE, J. ] ssc/wp4870.09