1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.857 OF 2009 IN S.C.SUIT NO.7910 OF 1995 WITH CIVIL APPLICATION NO.1054 OF 2009 Laxman Govind Thakur & Ors. ..Appellants V/s Sowar Shilu Koli & Ors. ..Respondents ---- Mr.R.M.Pandey for the appellants. Mr.Ganesh Bhujbal i/by Prashant Patil for the respondent nos.2, 5, 6, 9, 11 & 13. ---- Coram : R.S.MOHITE,J Date : 1st October, 2009. PC 1 This is an appeal preferred by the original plaintiffs. The plaintiffs have filed the suit for injunction. The defendants were served and have engaged an Advocate. It appears that the defendants were appearing on various dates. One of the plaintiffs expired and by way of Chamber summons, his heirs were brought on record. On 29.1.2009 the defendants were absent and hence suit was decreed on the basis of the affidavit in lieu of examination- in-chief which was tendered earlier. Thereafter immediately on 24.2.2009 the application was made by the defendants for setting aside the ex-parte decree and this has been allowed by the impugned order passed by the Court on 30.7.2009. It is sought to be contended that the application is not maintainable. It is not in dispute that the suit was 2 fixed for hearing and was dismissed after evidence of the plaintiffs was taken on record. In such circumstances, it cannot be said that the suit was dismissed for want of filing written statement. It is well settled that in such cases an application under Order-9 Rule-13 can be made for setting aside ex-parte decree. It is sought to be contended that the reason given by the defendants is not sufficient. It is seen that it is the contention of the defendants that they were mis-led by one of the plaintiff who told them that their presence will not be required unless notice is given by the plaintiff. It is seen that Advocate was appearing for the defendants. It is seen that, that Advocate did not remain present but the defendants should not suffer for want of diligence. In this background, in my view, this is not a fit case to interfere with and the Appeal from Order is therefore, dismissed. CIVIL APPLICATION NO.1054 OF 2009 As the main appeal is dismissed, Civil Application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 3