(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7199 OF 2009 Smt. Shashikala Shamsundar Khedkar, Age : 49 years, .. Petitioner Occupation : Household, (Original R/o. 33/136, Chikhalwadi, Nanded. defendant no.3) versus 1. Satish Soma Bhole, Age : 46 years, Occupation : Business & Agriculture, R/o. Tailor House, Opp. to Collector Bungalow, Jalgaon City, Taluka & District : Jalgaon. 2. Omprakash Sitaram Agrawal, Age : 50 years, Occupation : Agriculture & Business, R/o. 122, Ganesh Building, Navipeth, Jalgaon City, Taluka & District : Jalgaon. 3. Pralhad @ Balasaheb Govind Dahale, Age : 60 years, Occupation : Agriculture & Business, R/o. 15, Dinanath Wadi, Lokmanya Coop. Housing Society, Ring Road, Jalgaon City, Taluka & District : Jalgaon. (2) Tarabai @ Taramati Dinanath Dahale (Died through L.Rs.) 4. Smt. Nirmala Shivajirao Dahale, Age : 33 years, Occupation : Household. 5. Shrikant Shivajirao Dahale, Age : 39 years, Occupation : Business. 6. Mahendra Shivajirao Dahale, Age : 33 years, Occupation : Business. 7. Ashok Govindrao Dahale, Age : 55 years, Occupation : Business. Respondent nos.4 to 7, R/o. 3 Navi Peth, Jalgaon, Taluka & District : Jalgaon. 8. Chitra Vijay Gulvanjkar, Age : 37 years, Occupation : Household, R/o. Maleria Stop, Maiya Apartment, College Road, Nashik. 9. Sow. Sangita Krushna Kulthe, Age : - , Occupation : Household, R/o. Shree Building, H.No.3, Nanal Peth, Parbhani (M'wada). 10. Smt. Kumudini Dattatraya Dahale, Age : 65 years, Occupation : Household. (3) 11. Sanjay Dattatrya Dahale, Age : 45 years, Occupation : Business. 12. Sunil Dattatrya Dahale, Age : 40 years, Occupation : Business. Respondent nos.10 to 12 are R/o. 43, Shrikrishnanagar, Borivali, Mumbai. .. Respondents. .......................... Mr. R.R. Mantri, Advocate, for the petitioner. Mr. A.B. Kale, Advocate, for respondent nos.1 and 2. .......................... CORAM : B.R. GAVAI, J. DATE : 26TH NOVEMBER 2009. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. Since no order prejudicial to the interest of respondent nos. 3 to 12 is being passed, notice upon rule, on the said respondents is waived. (4) 3. By way of present petition, the petitioner challenges the order dated 3rd October 2009, passed by the learned 4th Joint Civil Judge (Senior Division), Jalgaon, below Exhibit 143 in Special Civil Suit No. 247/1999, thereby rejecting the application filed by the present petitioner for setting aside the order passed on 23rd March 2000 for proceeding the suit ex parte. 4. The respondent nos.1 and 2 plaintiffs have filed a suit for possession. In the said suit, the petitioner is defendant no.3. The suit summons was served upon the petitioner in 2000. However, since she did not appear, an order of ex parte came to be passed against her on 23rd March 2000. An application came to be filed for setting aside the said order on 19th August 2009. The said application is rejected. Hence, the present petition. 5. Mr. R.R. Mantri, learned Counsel appearing for the petitioner, submits that the petitioner was a married lady and residing with her husband and, therefore, she did not find it necessary to contest the suit. After the death of her mother, she found necessary to defend the proceedings. He submits that this ground itself would make out "sufficient cause" for condoning the delay in filing the application. In the alternative, he submits that the observations made by the learned Judge of the trial court, in paragraph 12 of the order, which say that there is a presumption that the petitioner had admitted the plaintiffs' claim and she was estopped from appearing in the proceedings, is perverse and contrary to the law laid down by the Apex Court in the case of Arjun Singh Vs. Mohindra Kumar and others (AIR 1964 SC 993). (5) 6. Mr. A.B. Kale, learned Counsel appearing for respondent nos.1 and 2, on the contrary, submits that the learned Judge of the trial court, by giving sound and cogent reasons, has rejected the application for setting aside "No written statement" order. He submits that in the application, no grounds are stated which would satisfy the test of "sufficient cause" for filing such a belated application. He, therefore, submits that no interference is warranted. 7. From the perusal of the application filed by the petitioner, it would reveal that the only ground stated is that she was a married woman and was residing at Nanded. She has stated that her mother was residing with her and she had instructed not to appear in the suit. She has stated that on account of her love and affection towards mother, in order to respect her sentiments, she did not appear in the proceedings. She has further stated that, however, her mother expired on 31st May 2007 and she was under a shock for almost two years and she recovered from the shock only on 9th August 2009, on which date she travelled to Jalgaon. She has further stated that when she opened the cupboard, she caught hold of certain documents which refreshed her memory regarding filing of the present suit and, therefore, she enquired. She has also stated that on enquiry, she came to know that the suit is still pending and, therefore, she though it necessary to file an application. 8. No doubt, that the application depicts good story and can be a good script for a film or drama. However, it cannot be said that the reasons given in the application, though may prima facie appear to be (6) quite appealing, would satisfy the test of "sufficient cause" for not filing the application for 9 long years. In that view of the matter, I do not find any error in the discretion exercised by the learned Judge of the trial court while refusing to set aside the ex parte order. 9. However, I find that the grievance of the petitioner, in so far as the observations in paragraph 12 of the order of the trial court, appears to be correct. The Apex Court in the case of Arjun Singh Vs. Mohindra Kumar and others (supra), has observed thus : " On the terms of O. IX R. 7, if the defendant appears on such adjourned date and satisfies the court by showing good cause for his non-appearamce on the previous day or days he might have the earlier proceedings recalled - "set the clock back"and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. " In that view of the matter, observations, made in paragraph 12 of the order of the trial court, are not sustainable in law. 10. In the result, the petition is partly allowed. (7) (i) The order dated 3rd October 2009, passed by the learned 4th Joint Civil Judge (Senior Division), Jalgaon, below Exhibit 143 in Special Civil Suit No. 247/1999, is modified to the extent, that the following observations in paragraph 12 of the order, are expunged : " Furthermore, she was purposefully or deliberately forgo or relinquished her right of appearance, presumption thereby that that she was admitted the plaintiff's claim before 9 to 10 years. Therefore, now she is estopped under Section 115 of the Indian Evidence Act, 1972, appear the matter. " (ii) It is made clear that the petitioner shall be entitled to appear in the suit from whatever stage the proceedings are pending now, without relegating her to her original position as defendant no.3. (iii) Taking into consideration the fact that the suit is pending from 2000, the learned Judge of the trial court is directed to expedite hearing of the suit and decide the same as far as possible within a period of one year from today. 11. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. ( B.R. GAVAI ) JUDGE bgp/7199wp