1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5559 OF 2008 Mohini Wineries Ltd ...Petitioner vs. M/s.S.S.R.Wine Engineers & Consultants Pvt.Ltd. ...Respondents Shri S.M.Gorwadkar for the petitioner Mr.Surel S. Shah for the respondent WITH CIVIL REVISION APPLICATION NO.487 OF 2008 M/s.S.S.R.Wine Engineers & Consultants Pvt.Ltd. ...Petitioners vs. Mohini Wineries Ltd. ...Respondent WITH CIVIL REVISION APPLICATION NO.488 OF 2008 M/s.S.S.R.Wine Engineers & Consultants Pvt.Ltd. ...Petitioners Vs. Mohini Wineries Ltd. ...Respondent Mr.Surel S. Shah for the petitioners in civil revision applications Mr.S.M.Gorwadkar for the respondent in civil revision applications CORAM :A.S.OKA,J. DATE : AUGUST 25, 2009 P.C. 1 Heard the learned counsel for the parties. On the earlier date the parties were put to notice that the petitions will be taken up for final disposal at admission stage. These petitions can be finally disposed of by a common order. For the sake of convenience, the parties will be hereinafter referred to with reference 2 to their respective status before the trial court. 2 The plaintiffs filed a summary suit under Order XXXVII of the Code of Civil Procedure,1908. The defendants were served with the summons for Judgment on 22nd November 2007. On 4th December 2007, the defendants applied for leave to defend the suit. After the said application for leave to defend the suit was filed, a separate application was filed by the defendants for condonation of delay in filing the application for leave. By the Judgment and Order dated 1st July 2008, the application for leave as well as the application for condonation of delay were allowed and the defendants were granted a leave to defend the suit with a direction to deposit 30% of the principal amount within a period of 30 days from the date of impugned order. 3 The Revision Applications Nos.487 and 488 of 2008 have been preferred by the plaintiffs for challenging the order condoning the delay and the order granting leave to defend. Writ Petition no.5559 of 2008 has been preferred by the defendants for challenging the order granting conditional leave. 4 The submission of the learned counsel for the plaintiffs is that no reason has been assigned by the learned trial Judge for condonation of delay. His 3 submission is that the learned trial Judge ought to have first decided the application for condonation of delay and only if the delay was condoned, the application for leave to defend could have been considered on merits. The submission of the learned counsel for the defendants is that the learned trial Judge has himself recorded a finding that there are triable issues involved and therefore, unconditional leave to defend ought to have been granted. 5 I have considered the submissions. I have perused the impugned order. Perusal of the impugned order shows that it is a common order passed on application for condonation of delay which is at Exh.22 and the application for grant of leave to defend the suit which is at Exh.18. Paragraphs 10 and 11 of the impugned order show that the learned trial Judge was conscious of the fact that he was dealing with the application for condonation of delay. He has noted that according to the defendants, the delay was only of 2 days. After referring to the contentions raised by the parties on the application for condonation of delay, the learned trial Judge has not recorded any specific reason for condoning the of delay. To that extent, the objection raised by the learned counsel for the plaintiffs appears to be correct. While dealing with the prayer for grant of leave to defend, the learned Judge has held that there 4 are triable issues. After holding that there are triable issues, the learned Judge has not assigned any reason as to why he directed the defendants to deposit 30% of the principal amount claimed in the suit. 6 It is true that the application for condonation of delay ought to have decided first. Only after deciding the said application, the learned Judge could have taken up for hearing the application for grant of leave to defend the suit provided the application for condonation of delay was allowed. In the circumstances, the only course open is to send back the matter to the trial court. 7 Hence, I pass the following order : i) Impugned Judgment and Order dated 1st July 2008 is quashed and set aside and the applications at Exh.18 and 22 are restored to the file of the trial court. The learned trial Judge will first hear and decide the application for condonation of delay at Exh.22. ii)If application for condonation of delay is allowed, the learned trial Judge will proceed with the hearing of the application for leave to defend in accordance with law. iii)Hearing of the applications is expedited. iv)All questions of the parties on merits are kept 5 open. v) Writ Petition and the revision applications are partly allowed in above terms. JUDGE