IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1296 OF 2009 Nagnath Pandurang Pawar ...Petitioner V/s. Shantabai Tukaram Tonge & Ors. ...Respondents ...... None present. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 17, 2009. MARCH 17, 2009. MARCH 17, 2009. P.C. 1. None appears when the matter is called out as kept back matter. Dismissed for non-prosecution. 2. Later on, Mr.Surel Shah for Petitioner mentioned the matter requesting to recall the order dismissing the Petition for default on the ground that when the matter was called out, he was busy in some other Court. : 2 : 3. For the reason mentioned, order dismissing the Petition for non-prosecution is recalled. Petition is restored to file to its original number and heard forthwith. 4. Heard Counsel for the Petitioner. 5. I find no infirmity in the view taken by the two Courts below in the fact situation of the present case. The order records that no written statement order was passed. However, on 1st September 2005, Court showed indulgence to the Petitioner by recalling the said order and allowing the Petitioner to file written statement upon payment of cost of Rs.300/- (Rupees Three Hundred). However, that direction was not complied by the Petitioner. Eventually, no written statement order was once again revived by the Trial Court on 24th March 2006 whereas, after lapse of two years, the Petitioner has chosen to file the present application for extending the time to deposit the amount. The fact that the other side has noted in the reply that the time be extended provided the : 3 : Petitioner was to pay Rs.3,000/- (Rupees Three Thousand) as cost cannot be the basis to answer the issue. The Applicant in the first place has to make out formidable case of exceptional circumstance which prevented the Applicant from complying with the conditional order. No such case has been made out in the Application. If it is so, the Application which is filed after two years has rightly been rejected. Hence, dismissed. 6. At this stage, Counsel for the Petitioner submits that the Court may clarify that it will be open to the Petitioner to question the correctness of the orders passed by the Trial Court in the Appeal to be filed against the final decision of the Trial Court. This argument will have to be stated to be rejected. 7. Insofar as issue as to whether the conditional order passed by the Trial Court was right and the consequential order which was passed on the subject application, the correctness thereof has been examined on merits in the present order. That will attain finality with this order, if not : 4 : challenged before the superior Court. The Petitioner cannot be permitted to agitate the same : 5 : grounds in Appeal before the District Court against the final decision of the Trial Court. 8. Petition dismissed on the above terms. A.M.KHANWILKAR, J.