1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 5286 OF 2009 Smt. Laxmibai Vishnuso Pawar & Anr. .. Petitioner Vs Dnyaneshwar Vishnu Pawar & Ors. .. Respondents ­­ Shri Amit M. Shete for the Petitioner. Shri S.A. Kumbhakoni for Respondent Nos.1, 2, 6 to 9. Ms Pallavi N. Dabholkar for Respondent Nos.3A to 3E, 4 and 5. ­­ CORAM : ABHAY.S. OKA, J DATE ON WHICH JUDGMENT IS RESERVED: 5TH FEBRUARY, 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED: 16TH FEBRUARY, 2010. JUDGMENT: 1. The Petitioners who are Defendant Nos. 4 and 5 in a suit filed by the 1st and 2nd Respondents have filed this Writ Petition under Article 227 of the Constitution of India for challenging an order dated 28th April, 2009 passed by the Trial Court below Application at Exhibit 2 – 136. 2. The 1st and the 2nd Respondents filed a suit for partition and separate possession against the Petitioners and the other Respondents. The Petitioners failed to file a Written Statement. On an application made by the Petitioner, the trial Court passed an order dated 3rd September, 2003 permitting the Petitioners to file the Written Statement subject to payment of costs of Rs.150/­. The suit was fixed for evidence. It appears that the Petitioners remained absent, therefore, the evidence was closed. An application was made by the Petitioners for setting aside the order by which their evidence was closed. By the order dated 28th April, 2009, the said application at Exhibit – 136 was rejected. In the said order, the trial Court noted that though the Petitioners were permitted to file Written Statement subject to payment of costs, they failed to deposit amount of costs within the stipulated time. Thereafter, time was extended by the trial Court but the Written Statement has not been exhibited. The learned trial Judge observed that the application made by the Petitioners was not bonafide and, therefore, he proceeded to reject the same. 3. Learned counsel appearing for the Petitioners submitted that though the amount of costs was deposited by the Petitioners within the time extended by the trial Court, due to procedural error, the Written Statement filed by the Petitioners was not exhibited. He 3 submitted that when the application at Exhibit­136 was made, the Petitioners were present in the Court and the trial Court could have allowed the application and recorded their evidence. The learned counsel appearing for the 1st and 2nd Respondents opposed the Petitioners by submitting that the Petitioners sought adjournment on more than half a dozen occasions and only thereafter their evidence was ordered to be closed. He submitted that the suit which is of the year 2002 has has been delayed due to defaults on the part of the Petitioners and, therefore, no interference is called for. 4. I have given careful consideration to the submissions. It is not in dispute that the time granted by the trial Court to deposit costs in terms of the earlier order was extended and the Petitioners deposited the amount of costs. The trial Court permitted the Petitioners to adduce evidence. It appears that from 5th February, 2008 till January, 2009, the suit was adjourned on 6 to 7 occasions as the Petitioners did not adduce their evidence and thereafter, the order was passed by the trial Court closing the evidence. The said order was passed on 7th January, 2009. On 27th January, 2009, the present application at Exhibit­136 was made by the Petitioners on which the impugned order has been passed. 5. The learned trial Judge while rejecting the application 4 observed that the Petitioners have stated in their application that they were out of station for religious purposes but no details have been set out. The trial Court observed that in absence of such details, it is very difficult to find out whether the application was bonafide or not. 6. It is true that from 5th November, 2008 to 7th January, 2009, the suit was fixed on 6 to 7 dates and the Petitioners have not chosen to lead evidence. The ground pleaded in the application made by them for their absence is that they were out of station for religious purposes. It is true that the material details have not been set out by the Petitioners. The Petitioners can be permitted to file further affidavit before the trial Court setting out the details so that the trial Court can decide whether there were adequate reasons for absence of the Petitioners. Result of following the said course will be that the hearing of the suit of the year 2002 will be delayed further. In the interests of justice, by setting aside the impugned order, the Petitioners can be permitted to lead evidence subject to the Petitioners paying costs of Rs.10,000/­ to the 1st and 2nd Respondents who are the original Plaintiffs. In fact, as per the suggestion made by this Court, the amount of costs of Rs.10,000/­ has already been paid by the Petitioners by a Demand Draft drawn in favour of the 1st Respondent. 7. Hence, I pass following order. 5 (a) The impugned order dated 28th April, 2009 is quashed and set aside and the Application at Exhibit­136 is hereby allowed. Thus, the order dated 7th January, 2009 is hereby set aside and the Petitioners are permitted to lead evidence subject to payment of costs of Rs.10,000/­ to the 1st and the 2nd Respondents. It is clarified that the amount of costs is already paid. (b) It is made clear that the Petitioners will not be entitled to seek adjournment on any unreasonable grounds and they will co­operate with the trial Court for expeditious disposal of the suit. (c) Hearing of the suit is expedited and it is directed that the trial Court will endeavour to dispose of the suit on or before 30th June, 2010. (d) The Petition is allowed in above terms. (A.S.OKA,J) ash