1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1550 OF 2008 Madhukar Mahadeo More .. Petitioners Versus Mrs. Sunanda Sitaram Kalaskar and others .. Respondents Shri G. T. Kamble i/b Shri Suryawanshi, for the petitioner Shri Mahesh Subramaniam i/b Shri S.V. Pitre for the respondents 1 to 5 CORAM: MRS. MRIDULA BHATKAR, J. DATED: 29th April, 2009 P. C. 1. Heard Learned Counsel for the parties. 2. The petitioner has filed this petition against the order dated 18.2.2008 passed by the Civil Judge, Junior Division, Thane, refusing the application to deposit the cost amount and to extent the period to deposit the amount, filed by the petitioner 3. The Respondents- plaintiff have filed suit for eviction against the present petitioner which was decreed ex- 2 parte. Thereafter, the respondents appeared in the execution proceedings and moved application under Order-9 Rule 13 of Civil Procedure Code for setting aside the ex-parte decree and also moved an application for condonation of delay. 4. Learned Trial court, while allowing the application for condonation, has imposed Rs,.10000/- towards cost to be deposited within 15 days from the date of order i.e. – 8.10.2007. However, the petitioner failed to deposit the said amount of Rs.10,000/- within stipulated period as ordered. However, the petitioner, on 14.2.2008 i.e. after four and half months went to the court to deposit the said amount of Rs.10,000/-. In between, the petitioner did not seek any extension of period to deposit the said amount. Therefore, the Trial Court has refused his application. Hence, this petition. 5. The learned counsel appearing for the petitioner submits that the petitioner could not collect Rs.10,000/- within a short period as he is working as Chowkidar and drawing 2000/- per month. Moreover, the petitioner did not appear in the Court and pursue the proceedings, because the original plaintiffs have assured him that they would withdraw the Suit. He further submits that the plaintiffs had filed suits against two 3 tenants and subsequently withdrawn the said suits and accordingly, it is contended in the petition . The learned counsel further submits that the learned Trial Court has erred in rejecting this application. The petitioner was willing to pay Rs.10000 . 6. Learned counsel appearing for the respondents has opposed this petition on the ground of latches and has submitted that the petitioner ought to have prayed for extension of time to deposit Rs.10,000/- before the Trial Court and that the suit is filed on the ground of bonafide requirement. 7. The time gap of nearly more than four months to pay the amount is definitely a circumstance against the petitioner and the petitioner ought to have get the time extended from the trial court. The Trial Court considered that the said period ought not to have been extended for a period more than 30 days as per Rule 13 Order 8 of the CPC. However considering the contention raised by the learned counsel for the petitioner that of previous instances of the withdrawal of the suits against two other tenants and the poor financial condition of the petitioner, I am Inclined to allow the petition. 4 (i) The petitioner has deposited the sum of Rs.10,000/- pursuant to the order passed by this Court on 11th March, 2008. Hence, the order passed by the Trial Court is quashed and set aside. (ii) The matter is remanded back to the Trial Court. Trial Court to try the application under Order 9 Rule 13, in accordance with law. (iii) The respondents are permitted to withdraw the amount of Rs.10000/-(Ten thousand) With the above directions, the petition is disposed of with no order as to costs. ( MRIDULA BHATKAR, J.) jpc/-