1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.391 OF 2008 Madhukar B. Retawade .. Petitioner Versus Smt.Sitabai K. Mane .. Respondent Mr.R.D.Suryavanshi for petitioner Mr.Rajesh Behre for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd January 2008 P.C. . The petitioner is aggrieved by the order passed refusing to condone delay in filing of an application for setting aside ex parte decree in Regular Civil Suit No.1711 of 2001. This suit 2 for eviction of the petitioner from the premises which is a room at Thane. 2. According to petitioner, there is delay of 62 days whereas the respondent landlady says that the delay is of 265 days. 3. Proceeding on the basis that the landlady is right, grievance of the petitioner is that he is selling garlands and flowers from door to door and at the relevant time, he was bedridden i.e. he was suffering with typhoid. Later on he went to his native place for change and rest. Upon his return from the native place Bailiff visited residential premises to take possession and that is how he was aware of the subject decree and the execution proceedings. 4. While deciding this application, learned Judge does not dispute that the petitioner was indeed ailing and had taken medical treatment and 3 was out of Thane for some time. However, he faults the petitioner in not having examined the Doctor. In my view, when the reason set out of the ailment and the fever so also the disease not being specifically denied, then, the learned Judge ought to have taken liberal view of the matter. Considering that the decree is for eviction, learned Judge could have imposed appropriate conditions including payment of cost and condoned the delay. Applying well settled principles to the facts of the present case, the delay deserves to be condoned. The impugned order insofar as it refuses to condone the delay in filing of an application to set aside ex parte decree deserves to be and is accordingly quashed and set aside. The delay stands condoned. Learned Judge now to decide the application under Order 9 Rule 13 preferred by the petitioner on its own merits and in accordance with law, as expeditiously as possible. However, the petitioner to pay cost to the landlady quantified 4 at Rs.1500/- and upon production of the proof in that behalf, application for setting aside the ex parte decree shall stand restored to file and proceeded as above. All contentions in sofar as said application are concerned, are kept open. No opinion is expressed thereon. Petition disposed of. (S.C.Dharmadhikari, J)