SRJ wp-1527-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1527 OF 2009 Shri Kondiba N. Mote & Ors., ..Petitioners. Vs. Shri Sitaram A. Lande (since deceased) through heirs.& Ors., ..Respondents. Mr.U.P.Warunjikar, for Petitioners. Mr.Nitin Deshpande, for Respondent Nos.1 to 15. CORAM : A.S.OKA, J.. DATE : 8th October, 2009. P.C.:- 1] The submissions of the learned counsel are heard earlier date. The Petitioners are the original Defendants and the Respondents are the original Plaintiffs. The challenge in this Writ Petition under Article 227 of Constitution of India is to an order dated 25th November, 2008 passed by Trial Court by which application for condonation of delay in applying for setting aside ex-parte decree made by the Petitioner has been rejected. 2] In a suit filed by the Respondents, a decree was passed on 3rd July, 2004. By the said decree, the Petitioners were directed to hand over possession of SRJ wp-1527-09.sxw 2 the suit property to the Respondents. An application for setting aside the ex-parte decree was filed by the Petitioners on 29 th March, 2005. There was a delay in filing said application. The delay was of 270 days. By the impugned order, the application for condonation of delay has been rejected. 3] The learned counsel appearing for the Petitioners submitted that going by the averments made in the application for condonation of delay, there was more than sufficient explanation for the delay. He submitted that considering the date on which Petitioner came to know about the decree, the delay ought to have been condoned. The learned counsel appearing for the contesting Respondents submitted that there was absolutely no explanation for delay which was of more than 270 days. It is submitted that in fact, this was a case of no explanation and the Trial Court has rightly rejected the application. He submitted that no interference was called for. 4] I have carefully considered the submission. In the application for condonation of delay, it was pointed out by the Petitioners that they had appeared in the suit and in fact, filed their Written Statement. It is submitted that in October, 2004, when they enquired with their Advocate, they came to SRJ wp-1527-09.sxw 3 know about the decree passed in the suit. It is stated that on 26 th October, 2004 an application for obtaining a certified copy of the decree was made which was received on 5 th November, 2004. It is stated that a revision application preferred by the Petitioners in this Court against an order passed in the suit was pending and, therefore, they were under a bonafide impression that it was not necessary for them to attend the Trial Court. It is stated that the Third Petitioner was ill. This is the explanation for the delay of about 270 days. The Trial Court found that there is no explanation for delay from 2 nd February, 2005 to 31 st March, 2005. After observing this, the Trial Court has commented that the Third Petitioner was sick from 2 nd November, 2004 and, therefore, there is no explanation for the period prior to the said date. 5] Considering the grounds set out in the application, a liberal approach ought to have been adopted by Trial Court by condoning the delay of 270 days. It must be stated here that the Trial Court could have condoned the delay by directing the Petitioner to pay costs to the Respondents. SRJ wp-1527-09.sxw 4 6] Therefore, the Petition must succeed. However, the Petitioners will have to pay costs of Rs.10,000/- to the Respondents. The said amount has been already paid by the Petitioners to the Respondents. 7] Hence, I pass the following order:- (i) The impugned order dated 25 th November, 2008 is quashed and set aside; (ii) Misc. Civil Application No.45 of 2005 stands allowed; (iii)The Trial Court to proceed with the main application in accordance with law. (iv) Writ Petition is allowed in the above terms. (A.S.OKA, J. )