1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3697 OF 2007 Baba Yeshwant Khupse .. Petitioner versus Sau.Parvatibai Barku Thorat & Ors. .. Respondents Mr.A.M.Kulkarni for the petitioner. Mr.Y.J.Master for respondent No.1. Mr.A.P.Kulkarni for respondent Nos.2 to 4. CORAM : A.S.OKA, J. DATE : 16th February 2010. P.C: . Heard learned counsel appearing for the petitioner and learned counsel appearing for the 1st respondent. The 1st respondent is the original plaintiff. A decree has been passed on 17th January 2004 in favour of the 1st respondent. The present petitioner who is the 2nd defendant made an application on 25th August 2004 for setting aside the decree. As there was a delay in filing the said application, an application for condonation of delay was filed which has been rejected by the impugned order dated 7th March 2006. 2. The submissions of the learned counsel appearing for the petitioner is that while deciding the application for condonation of delay, the trial Court could not have gone into the merits of the application for setting aside the ex-parte decree. He submitted that the Court could not have decided as to what was the nature of 2 the decree. He pointed out that the application was made seven months after the date of the decree and therefore the trial Court ought to have adopted a justice oriented and liberal approach. He invited my attention to the affidavits filed in this Court setting out the reasons as to why medical certificate could not be produced by the petitioner before the trial Court. 3. The learned counsel appearing for the 1st respondent plaintiff relied upon the order dated 16th October 2009 passed by this Court in Writ Petition No.465 of 2007. He submitted that in view of this order no interference is called for. He submitted that there is a gross unexplained delay of about six months in filing the application and the petitioner has not adduced evidence in the form of medical certificates for proving the grounds in the application for condonation of delay. He submitted that no interference be made with the discretionary order passed by this trial Court. 4. I have considered the submissions. As far as order dated 16th October 2009 passed by this Court in Writ Petition No.465 of 2007 is concerned, it must be noted that the petitioner therein was one of the defendants in the same suit filed by the 1st respondent. The petitioner in the said petition had preferred an appeal before the District Court for challenging the same decree. There was an application for condonation of delay in the appeal which was rejected by the order impugned before this Court. This Court noted that the application for the condonation of delay was preferred by the petitioner therein on 29th August 2006 after the order impugned in the present petition was passed. This Court noted 3 that the petitioner in the said petition was a party to the application filed by the petitioner herein. This Court noted that the petitioner in the said petition waited till application for setting aside ex-parte decree made by the petitioner herein was decided and thereafter preferred an appeal. That is the reason this Court did not interfere. Therefore, the said order will not help the 1st respondent. 5. As stated earlier, the delay was of about six months. In the application for condonation of delay the main reason assigned is of sickness of the petitioner. In the additional affidavit filed in this Court the petitioner has set out the reasons as to why medical certificate could not be filed before the trial Court. 6. In the circumstances, an opportunity will have to be granted to the petitioner to lead evidence in support of application for condonation of delay. A suggestion was made by this Court to the learned counsel appearing for the 1st respondent that instead of delaying the proceeding further, the application for condonation of delay can be allowed subject to payment of appropriate costs. However, the said suggestion was not acceptable to the learned counsel appearing for the 1st respondent. The petitioner has assigned reasons as to why he could not produce the material when the application for condonation of delay was heard. In the circumstances, an opportunity deserves to be granted to the petitioner to produce the material before the trial Court. The petitioner will have to pay costs of this petition to the 1st respondent quantified at Rs.5,000/-. 4 7. Hence, writ petition is disposed of by passing following order: : O R D E R : (a) The impugned judgment and order dated 7th March 2006 is quashed and set aside subject to the petitioner paying costs of Rs.5,000/- to the 1st respondent within a period of six weeks from today. (b) Civil Miscellaneous Application No.20 of 2004 is restored to the file of the trial Court. The parties are directed to appear before the trial Court on 22nd March 2010 at 11.00 a.m. (c) The petitioner will adduce oral and documentary evidence on the date fixed by the trial Court for recording of evidence without seeking adjournment on any unreasonable ground. (d) The trial Court will endeavour to dispose of the application as expeditiously as possible and preferably before end of August 2010. (e) All contentions of the parties on merits of the said application are kept open. (f) Till the disposal of the application by the trial Court, ad-interim relief granted by this Court on 24th August 2009 will continue to operate. (g) Writ petition is partly allowed in above terms. (A.S.OKA,J)