1 WP 6626.2010 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6626 OF 2010 1. Jadubai Bajirao Kadam And Ors Age : 58 Yrs., Occ. Agril., and household, R/o Bhanasgaon, Tq. & Dist. Osmanabad. 2. Vimal W/o Utreshwar Tekde Age : 44 Yrs., Occ. Agril. R/o : Mankeshwar, Tq.: Bhoom, Dist.:Osmanabad 3. Suman W/o Dattatraya Garad Age : 40 Yrs., Occ. Agril., household, R/o : Khed,Tq.& Dist Osmanabad ....PETITIONERS V E R S U S 1. Janardhan S/o Rama Dangat Age : 85 Yrs., Occ. Agril. R/o : Murud, Tq.& Dist.: Latur. 2. Agatrao S/o Janardhan Dangat Age : 55 Yrs., Occ. Agril. R/o : Khed Tq. & Dist Osmanabad 3. Bhagwat S/o Janardhan Dangat Age : 47 Yrs., Occ. Agril. 2 WP 6626.2010 - ( J ) R/o : Khed,Tq. & Dist Osmanabad 4. Dattu S/o Janardhan Dangat Age : 42 Yrs., Occ. Agril. R/o :Khed, Tq. & Dist Osmanabad 5. Suman W/o Nivrutti Sherkar Age : 38 Yrs., Occ. Agril. R/o : Salunke Nagar, Osmanabad, Tq. & Dist Osmanabad. 6. Kesharbai W/o Bagwat Tekale Age : 32 Yrs., Occ. Agril. R/o : Khed, Tq.& Dist Osmanabad ..... RESPONDENTS Mr. A.L.Tikle, Advocate for the Petitioner. Mr. P.S.Chavan, Advocate for Resp.nos. 2 to 6. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 14/06/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The petitioners are the original plaintiffs, who had filed Suit for partition and separate possession. When the matter was for evidence, adjournments were sought, eventually the trial Court passed order of ‘ no 3 WP 6626.2010 - ( J ) evidence ’. Subsequently, the petitioners filed an application on 4/2/2010 along with the Examination-in-Chief on affidavit. The said application Exh. 55 is rejected. Aggrieved thereby, the present petition has been filed. 3. Mr.P.S.Chavan, the learned counsel for the respondent nos. 2 to 6 vehemently opposes the petition and states that inordinate delay has been caused by the petitioner. Initially, the matter was fixed on 6/1/2010 and an adjournment was sought. The same was adjourned to 20/1/2010. Again on 20/1/2010, adjournment was sought on behalf of the plaintiff. The said application was rejected. Thereafter, the present application is filed for recalling the order of no evidence on 4/2/2010. According to the learned counsel, the aforesaid events show the total lack of diligence in conducting the matter. The trial court has rightly exercised its discretion in rejecting the said application. According to the learned counsel, the petitioners are protracting the matter. 4. No doubt, three ( 3 ) times adjournment has been sought by the petitioners, but it would be seen that on 14/12/2009, the list of witnesses has been given and on 4/2/2010 the plaintiff has filed Examination-in- Chief. As such, it can not be said that there was an inordinate delay in filing the affidavit. More over, the Suit is a substantive Suit for partition and 4 WP 6626.2010 - ( J ) separate possession. It would be in the interest of justice to get the Suit decided on merits. 5. In light of the above, I am inclined to quash and set aside the impugned order on payment of costs of Rs. 2,000/- ( Rupees Two Thousand only ) to be paid by the petitioners to the respondent nos. 2 to 6 and allow the petitioner to adduce the evidence. It is stated that the Examination-in- Chief on affidavit is already filed on record. The petitioners shall diligently lead the evidence and shall not seek any unnecessary adjournments. 6. The Writ Petition is accordingly allowed. Rule is made absolute in terms of prayer clause ‘ B ’ on condition that the petitioners pay total cost of Rs. 2,000/- (Rupees Two Thousand only ) to the respondent nos. 2 to 6 within the period of three ( 3 ) weeks from today. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 6626.2010 - ( J )