IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. WRIT PETITION NO. 5521 OF 2011 S.K.Enterprises and another. ... Petitioners. V/s. Shri Chandrakant Bajirao Deshmukh and others. ... Respondents. P.S.Dani for the petitioners. R.D.Soni i/b. S.G.Gavade for respondent No.1. CORAM: R.M.BORDE, J. DATED : 23rd August 2011. P.C. : Heard. 2. Rule. 3. By consent of parties, the petition is taken up for final disposal. 4. By this petition, the petitioners/ original plaintiffs are raising exception to the order dated 17th June 2011 passed by the learned Civil Judge, Senior Division, Panvel below Exh.41 in Special Civil Suit No.92/2009. The petitioners/ original plaintiffs presented a suit for specific performance of agreement of sale dated 25th February 2005. The trial Court directed issuance of notices to the defendants and the date of appearance was fixed on 16th March 2009. The suit summonses were served on the defendants on 9th March 2009. The defendants appeared in the matter, however, failed to file written statement. Ultimately, the trial Court proceeded to pass the order to proceed with the suit without any written statement presented on behalf of the defendants, on 10th June 2009. Thereafter, the defendant No.1 presented an application at Exh.28 on 12th March 2010 requesting the Court to set aside the “No W.S. order” passed on 10th June 2009 and another application at Exh.30 was also presented by the defendant No.1 requesting for condonation of delay in tendering application for setting aside “No W.S. order”. Both applications were resisted by the original plaintiffs by filing their say. The trial Court, however, did not pass any order either of Exh.28 or Exh.30. In the meanwhile, defendant No.1 presented an application on 24th September 2010 requesting the Court to refer the matter for arbitration. Said application was also opposed by the petitioners/ original plaintiffs contending that the stage to tender such an application under section 8 of the Arbitration Act was already over and the parties at this late stage of the proceeding cannot be referred to the arbitrator. The defendant No.1 without insisting upon the Court to pass order on Exhs.28 and 30, the applications presented by him earlier, proceeded to file an application at Exh.41 requesting to set aside the “No W.S. order”. The trial Court proceeded to take up the application at Exh.41 presented by defendant No.1 and passed an order allowing the same since there was no say filed by the plaintiffs. 5. The counsel appearing for the petitioner has seriously disputed correctness of the order passed by the trial Court below Exh. 41 dated 17th June 2011. It is contended that the Court ought not to have taken the application at Exh.41 for consideration keeping the applications presented by defendant No.1 earlier at Exhs.28 and 30 pending. He submits that the trial Court has also not recorded any reasons in support of the order passed below Exh.41 and merely proceeded to allow the same on the ground that original plaintiffs had not filed their say to the application. 6. I have perused the application as well as the impugned order and heard parties. 7. It is true that the course adopted by the trial Court in proceeding to consider the application at Exh.41 without considering the earlier applications at Exhs.28 and 30 was erroneous. The trial Court ought to have considered the applications at Exhs.28 and 30 first, which were opposed by the plaintiffs by presenting their say. Now the course available is either to remit the matter back to the trial Court for consideration of those applications or to deal with those applications and the impugned order in this petition. Considering the facts and circumstances of the case, I do not deem it proper to refer the parties to the trial Court and give direction for consideration of applications at Exhs.28 and 30. The fact remains that the defendants were served with the suit summons on 9th March 2009 and the impugned order was passed on 10th June 2009. The defendant No.1 applied for setting aside the said order on 12th March 2010 i.e. within the span of about nine months. There is hardly a delay of few months in approaching the Court. Considering the facts and circumstances of the case, the ends of justice would be met if the defendant No.1 is directed to pay costs to the plaintiff. 8. The counsel appearing for the petitioners relying on the judgment of the apex Court in the case of Kailash v. Nanhku, (2005) 4 SCC 480 contends that the ex parte order passed by the trial Court forfeiting the rights of the defendants to present on record their written statement should not be set aside. The matter arising before the Apex Court is in respect of election trial and under the provisions of Representation of the People Act, 1951. The test to be applied in dealing with the election disputes is different. The election petitions are to be decided in accordance with the provisions of Representation of the People Act and strict adherence to the procedure is expected. However, in connection with the matters such as present one, there is scope of relaxation of rigours to the procedure. The rules of procedure are to be applied to meet the ends of justice. Reference can be made to the judgment of the Apex Court in the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, (1969) 1 SCC 869. It is observed by the Apex Court as under: “Rules of procedure are intended to be a hand-maid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure......” Considering the ratio laid down by the Apex Court in Jai Jai Ram Manohar Lal (supra), I am of the view that the defendant No.1 can be directed to pay costs to the plaintiffs while maintaining the order passed by the trial Court below Exh.41. 9. The defendant No.1 is, therefore, directed to pay costs of Rs.10,000/- as condition precedent for presenting of written statement on record. The costs to be deposited with the trial Court within two weeks from today. With this modification, writ petition stands disposed of. In view confirmation of the order passed below Exh.41, the applications at Exhs.28 and 30 pending on the file of the trial Court stand disposed of. (R.M.BORDE, J.)