1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1573 OF 2009 Shri Bhagwan N. Dhole & Ors. ..Petitioners. V/s. Shri Arjun N. Dhole. ..Respondent. Mr.A.P.Kulkarni for petitioners. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the Petitioners. 2. Pursuant to the liberty granted in terms of the Order dated 24th February, 2009, the Petitioner has filed affidavit of the concerned advocate giving specific details regarding the non-appearance and non-filing of written statement before the lower Court. Since this is a factual matrix and being stated for the first time before this Court, in my opinion, the appropriate course is to allow the Petitioners to move the Trial Court afresh for the same relief, which was prayed in Exh.33, so that the Trial Court can consider the efficacy of the affidavit filed by the Petitioners by giving opportunity to the otherside. All questions with 2 regard to the controversy as to whether there is good and sufficient cause for non-appearance of the Petitioner on the relevant dates and moreso, exceptional circumstances made out by the Petitioner for condoning delay in filing Written Statement beyond 90 days will have to be addressed afresh on its own merit in accordance with the law, uninfluenced by the order, which is impugned in this Writ Petition. The Trial Court may proceed on the assumption that the Order dated 17th July, 2008 has been set aside in terms of this Order. Indeed, the proposed application will have to be examined in the context of the situation occurring as on the date of filing of the Application Exh.33. 3. I am inclined to take recourse to such course, as it would avoid the respondent from incurring legal expenses for making appearance before this Court and deal with the issues raised by the Petitioners for the first time. Instead the said issues can be addressed before the lower Court, as is mentioned earlier. For this indulgence however, the Petitioner will have to compensate the Respondent by paying cost quantified at Rs.3,000/-. 4. It is also made clear that if the Respondent 3 has any reservation about this arrangement is free to apply for recall of the present order, so that the matter can proceed before this Court, if required. 5. Payment of cost is condition precedent for permitting filing of fresh application and producing the affidavit of the advocate before the lower Court. That be done within three weeks from today, failing which the Lower Court may proceed on the assumption that the Order dated 29th September, 2008 has been confirmed in terms of this order. 6. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)