1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2049 OF 2009 Sugandhkumar S/o.Gangadhar Gadhave Age-35 years, Occu-Business, R/o.Narlibag, Aurangabad PETITIONER VERSUS The Commissioner, Municipal Corporation, Aurangabad, Tal. And Dist. Aurangabad. RESPONDENT Mrs.N.N.Gangwal, learned counsel for petitioner. Mr.S.N.Pagare, learned counsel for respondent. (CORAM : A.V.POTDAR, J.) DATE : 06/08/2009 PER COURT : 1. Rule. 2. Rule made returnable forthwith. By consent of the parties, the writ petition is taken up for final hearing at the stage of admission. Under Article 227 of The Constitution of India, the present writ petition is filed by the petitioner herein to challenge the order passed by the 5th Civil Judge, S.D. Aurangabad in the miscellaneous application requiring judicial inquiry no. 1115/2008 dated 2 21/02/2009. 3. Heard respective counsels of the parties. 4. The facts which gave rise to file the present writ petition can be summarized as – The present petitioner has filed RCS No.457/2007 against the respondent Municipal Corporation, Aurangabad. The petitioner plaintiff has filed application for temporary injunction in that suit which came to be allowed after hearing both the sides. Thereafter, the pleadings were completed, issues were framed and the suit was listed for final hearing. It appears that the date fixed to file the affidavit of examination in chief is 11/12/2007 when affidavit of examination in chief was filed which is at Exh.29. Thereafter, the matter was waiting for cross examination of the plaintiff and as due to failure on the part of plaintiff petitioner to appear in the Court to face the cross examination on 17/11/2008, and the order came to be passed that the evidence of plaintiff is excluded and the matter is fixed for evidence of the respondent defendant. It further appears that on behalf of the respondent defendant, pursis came to be filed before the Trial Court that they do not want to lead any oral evidence. Thereafter on 19/12/2008, the suit was dismissed for want of evidence by the 5th Civil Judge, S.D. Aurangabad. Subsequent to the dismissal of the said suit, an application was moved for restoration of the suit on 29/12/2008, which is in limitation. This restoration application was numbered as MARJI No.1115/2008. In the said application also, interim order of status-quo came to be passed in the 3 first week of Jan. 2009. This order was continued till the misc. application was finally heard. By order dated 21/02/2009, this Misc. Application came to be rejected by the learned Trial Court i.e. the order impugned in the present writ petition. 5. Today when the matter appears on board for hearing for admission, I have heard submissions of learned advocate for petitioner followed by the arguments of learned advocate appearing for Corporation, the respondent. During the course of arguments, mainly two things are brought to my notice. First is that even though the affidavit of examination in chief was filed on 11/12/2007, the matter was waiting for cross examination of the plaintiff i.e. the petitioner, who was not available to face the cross examination. During the course of submissions, my attention is drawn towards para no.3 of the order wherein it is stated that during this period, after the affidavit of examination in chief was filed before the Trial Court till the order of dismissal was passed in the suit, the matter was adjourned to 25 to 30 times. But on careful perusal, these are not the observations of the Court, but these are the averments made in the say filed in the application for restoration by the respondent opponent who is the defendant before the Trial Court. It is observed in para no.4 of the order of the Trial Court that even though the matter was waiting for the period of one year, the plaintiff was not available for cross examination, hence his evidence was struck down and the suit was dismissed for default. In the observations of the Trial Court in para no.4,5 and 6, it is brought to the notice that even 4 though the matter was waiting for the period of one year at whose instance the matter was waiting for the period of one year is not clear. 6. During the course of submissions, one of the point urged across the bar that considering the poor financial condition of the petitioner/plaintiff, who is running a Zunka Bhakar Kendra and which is still in existence as after the writ petition was filed because of certain interim orders are passed stall was in existence and the petitioner is running the stall and considering these facts, the application for restoration to be allowed on payment of costs. At the end of the say filed by the respondent defendant before the Trial Court, it was urged that in case, the Court pleased to restore the suit which was dismissed for default, then heavy costs to be awarded for such restoration. Thus one fact is clear that even though the suit was dismissed for which the application for restoration was filed, the defendant respondent has no objection if the suit is restored on payment of costs. Considering this aspect, without entering into the merits, this Court thinks fit that the Misc. application for restoration to be allowed on payment of costs in the sum of Rs.4,500/- as a condition precedent. On payment of costs, the suit dismissed to be restored on the file of the Trial Court. Costs to be paid within 2 weeks from today in the Lower Court. In case, the petitioner plaintiff failed to deposit the costs as ordered within the period of two weeks, then the order of restoration of the suit will automatically stand rejected and the suit will be dismissed without back reference to any of the Court. 5 7. Rule thus made absolute as indicated above. Writ petition stands disposed of with costs as ordered above and stands disposed of. Certified copy of this order stands expedited. Parties to act upon the authenticated copy duly signed by the Shirastedar of this Court. (A.V.POTDAR, J.) khs/AUGUST 2009/wp2049-09