:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4613 OF 2007 Smt. Akubai Hindurao Khot and anr. ..Petitioners Vs. Ananda Yashwant Gavade and ors. ..Respondents Mr. Bhushan A. Walimbe for petitioners. Mr. Pratap Patil for respondent no.1. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : April 01, 2008. Date : April 01, 2008. Date : April 01, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Walimbe the learned counsel for the petitioners who are plaintiffs in RCS No. 311 of 2002. 2. Rule. Mr. Patil waives service for respondent no.1. Leave to delete respondent nos.2 to 4. Amendment be carried out forthwith. :2: 3. As the petition impugns an interlocutory order passed below Exh.40, the petition is taken up for final hearing forthwith. 4. The respondent no.1 who is defendant no.1, though had appeared in RCS No. 311 of 2002 did not file Written Statement and consequently no W.S. order came to be passed against him. The defendant no.1, therefore, filed an application at Exh.26 praying for setting aside no W.S. order and also to take on record the W.S. to be filed. By the order dated 21/9/2004 the application below Exh.26 was allowed and no W.S. order dated 19/6/2003 was set aside by imposing costs of Rs.1000/-. The defendant was permitted to file W.S. In the meanwhile, the plaintiffs had filed affidavit by way of examination-in-chief on or about 7/1/2004 and, therefore, they wanted to file additional affidavit by way of examination-in-chief having regards to the fact that the W.S. of defendant was allowed to be taken on record as per the order dated 21/9/2004. This application at Exh.40 has been rejected by the impugned order dated 4/7/2006 by the trial court. The :3: said order does not give any reasons and it only reads as under: "Perused the record. No sufficient reasons. Rejected." 5. There is no dispute that the application at Exh.40 was filed belatedly and the plaintiffs had waited for almost two years. Mr. Walimbe, the learned counsel for the plaintiffs submitted that they are illiterate. This explanation does not justify the delay, simply because the plaintiffs are being represented by an Advocate. Nevertheless, ends of justice would be met if the additional affidavit by way of examination-in-chief is allowed to be filed within a fixed period by imposing the costs and in any case the cross-examination of the plaintiffs witness did not commence at any time on Exh.22. 6. Hence, this petition is allowed and the impugned order dated 4/7/2006 is hereby quashed and set aside. Consequently, the Application at Exh.40 filed in RCS No. 311 of 2002 stands allowed subject :4: to the condition that an amount of Rs.1000/- is paid to the defendant within four weeks from today and the additional affidavit by way of examination-in-chief is also presented before the trial court within the said period of four weeks. The trial of the suit is expedited. 7. Rule is made absolute accordingly. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)