KBP 7341-08.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7341 OF 2008 Smt.Anusayabai Haribhau Jadhav and ors. ..Petitioners Vs. Smt.Hausbai Sadashiv Kalje and ors. ..Respondents ....... Mr.Mandar Limaye, for petitioners. ....... CORAM : A.S.OKA, J. DATE : 18 th SEPTEMBER, 2009. P.C. : 1] Heard learned counsel for the petitioners. He states that in terms of the order passed by this Court on 20 th July, 2009, a private notice to the respondents for final disposal of the writ petition has been served and an affidavit of service has been filed. In view of this statement, the petition is taken up for final disposal. None appears for the respondents. 2] The respondents are the original plaintiffs and the petitioners are the original defendants in the suit filed by the respondents. The service of summons was permitted by paper publication. The summons was published on 30 th January, 2008. Thereafter, the court passed an order directing that the suit be proceeded with ex-parte against the defendants. An application was made on behalf of the defendants for setting aside the said order and for KBP 7341-08.sxw 2 seeking permission to file a reply to the application for temporary injunction as well as the written statement. By the impugned, order the said application has been rejected. 3] In the impugned order, the learned trial Judge observed that the application at exhibit 18 was made only by the first defendant and there is no application made by the other defendants. The learned Judge observed that there is no cogent ground for non-appearance of the first defendant. 4] After having heard submissions of the learned counsel for the petitioners, I find that the impugned order is erroneous. As stated earlier, the service of summons was made by publication in local news paper. In the application and in the affidavit exhibit 21 the petitioner stated as under :- “ That, the Defendants are not educated and defendants are residing at the village Kotalwadi, Charoli Bk., Taluka Haveli, District Pune and the Plaintiffs are residing at village Kaljewadi which is also in Charoli Bk., Tal. Haveli, Dist.Pune as such the plaintiffs were having knowledge of the detail address of the defendants. However the plaintiffs have knowingly and purposely and with malafide intention have not mentioned the proper addresses of the defendants in the plaint. It is submitted that the Village Kotwalwadi, Choroli Bk. Is a small KBP 7341-08.sxw 3 village and anybody can trace the defendants residence, however to seek the Order of Ex-parte against the defendants and in turn an Ex-parte Decree against the Defendants the Plaintiffs have not given the proper addresses of the Defendants in the suit. That the defendants got the knowledge of this present suit when the plaintiff replied, on dated 12/5/2008, to the public notice dated 7/5/2008 given in respect of the suit property by a third party. That, hence the Defendants got the knowledge of this suit before this Hon’ble court and forthwith appeared before this Hon’ble Court and filed this application.” 5] This assertion has been completely ignored by the learned trial Judge. The reasons for non appearance were disclosed in the application. Moreover, from the application exhibit 18 it appears that the same was filed by all the defendants and the affidavit in support was filed by first defendant, and therefore, the observation of the learned Judge that the application was made only by the first defendant is totally erroneous. 6] In view of the averments in application at exhibit 18 and affidavit in support of the application, a case is made out for setting aside the impugned order. KBP 7341-08.sxw 4 7] Hence, I pass the following order: (a) The impugned judgment and order dated 30 th September, 2008, is quashed and set aside. The application exhibit 18 is hereby allowed. (b) Writ Petition is allowed in above terms. ( A.S.OKA, J. )