1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8499 OF 2006 Sou.Shobha Yeshwant Desai. ... Petitioner. V/s. Shri Baban Shripati Suryawanshi and others. ... Respondents. P.S.Dani for the petitioner. Amit Borkar for respondent Nos.1 to 5. CORAM : V.C.DAGA, J. DATED : 20th January 2010. P.C. : Heard learned counsel for the petitioner and learned counsel for respondent Nos.1 to 5. Respondent Nos.6 to 9 are absent though served. Perused petition. On the last date of hearing, parties were put on notice that this petition would be finally heard and disposed of at the stage of admission itself. Accordingly, petition is heard finally by consent of parties. 2. This petition filed under Article 227 of the Constitution of India is directed against the order dated 29th April, 2006 passed by the Joint Civil Judge, Kolhapur below Exh.5 and Exh.21 in Misc.Application No.63/2006 filed under order 9 rule 13 of Code of Civil Procedure, 2 1908 (C.P.C.); wherein and whereunder application at Exh.5 was rejected and application at Exh.21 was allowed, with the result, Misc.Application No.63/2006 came to be dismissed with costs. 3. Both advocates appearing for the rival parties agree that the application filed under order 9 rule 13 was barred by limitation by 141 days. Application for condonation of delay was taken out. From the impugned order it is clear that application for condonation of delay was dismissed merely holding that application under order 9 rule 13 was not maintainable without going into the question whether or not delay was explained to the satisfaction of the Court. 4. Both advocates further agree that the trial Court was not expected to deal with the merits of the application under order 9 rule 13 of C.P.C., unless first, the application for condonation of delay was considered on its own merits. They agree that while considering application for condonation of delay, trial court was expected to consider whether or not there was sufficient cause for condonation of delay. Non- maintainability of the main application under order 9 rule 13 of C.P.C. could not have been a sole ground to refuse to condone delay. The submission is that merits of the application could not have been touched, unless the delay was condoned. In absence of condonation of delay the Court could not have assumed jurisdiction to decide the substantive application under order 9 rule 13 of C.P.C. 3 In the present case, the trial court has devoted its entire energy in deciding the main application without considering application for condonation of delay on its own merits. 5. In the above view of the matter, looking to the consensus between the parties, without examining merits or demerits of the impugned order and without expressing any opinion on the merits of the prayer under 9 rule 13 of C.P.C., by consent of parties, the impugned order is set aside and the proceedings are remitted back to the trial Court for consideration afresh. All three applications Exh.5, Exh.21 and Misc.Application No.63/2006 are restored to the file of the trial Court with direction to decide the application for condonation of delay first and then decide the main application moved under order 9 rule 13 of C.P.C. along with Exh.21 seeking rejection thereof. All rival contentions are kept open. 6. Rule is made absolute in terms of this order with no order as to costs. (V.C.DAGA J.)