1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 4696/2008 (Leelabai S. Wankhede & others vs. Ravindra N. Domane & others) ====================================== Shri J.J.Chandurkar, Adv. for the petitioners Shri Anand Parchure with Shri Dhumale, Adv. for respondent Nos. 1 to 5 CORAM : B.P.Dhamadhikari, J. DATE : 18 th NOVEMBER, 2008 Heard learned counsel for the parties. The only grievance made by Advocate Chandurkar is that Court of Civil Judge, Senior Division, Daryapur, while passing the impugned order on 31.3.2008 did not apply its mind to the merits of the controversy at all. He states that the matter requires fresh consideration in view of the remand by this Court vide its order dated 29th February, 2007, in Writ Petition No. 5755/2006, in which liberty was given to the petitioner to move an application for setting aside abatement of the suit. Advocate Chandurkar contends that because of parallel litigation, the present respondent (original plaintiff) had the necessary knowledge and as such, after considering this fact, the delay normally could not have been condoned. 2 Advocate Shri Dhumale for respondents invites attention to consideration of this aspect in paragraph 5 of the order by this Court to state that in view of those observations, the trial Court did not find it necessary to record reasons separately. However, it is to be noticed that those observations were made by this Court only prima facie after noticing that application for setting aside abatement was not made. Thus, this court has permitted a lacuna to be cured subject to payment of cost and after such application for setting aside abatement was made, it is necessary for court to consider that application on merits. The costs of Rs. 3,000/- were not for setting aside abatement, but were for liberty given to respondents to move such application for setting aside abatement. Perusal of order dated 31.3.2008 clearly shows total non application of mind and hence the same cannot be sustained. Accordingly the said order is quashed and set aside. However, the suit is of the year 1991, the Court below to decide the applications at Exhs. 43, 33, 48 and 68 independently on its own merits without getting influenced by any observations made this Court Court in its earlier order dated 29th November, 2007 or in the present order. The court shall decide the application as early as possible and in any case on or before 31st January, 2009. 3 Rule accordingly. However, in the facts and circumstances of the case, there would be no order as to costs. JUDGE Rvjalit