1 wp 5753.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5753 OF 2011 Late Pandit Dhanaji Shimpi Through his legal heirs .. Petitioners Versus Ramdas Dhanaji Shimpi and others .. Respondents Shri M. M. Bhokarikar, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 04TH AUGUST, 2011. PER COURT : . The petitioners are original defendant Nos. 1-A & 1-B. The right to adduce evidence was forfeited by the Court. Thereafter, the present petitioners filed an application for setting aside the same and allowing them to adduce the evidence. The Court allowed the said application on payment of cost of Rs. 1,000/-. The petitioners being aggrieved by the levy of cost of Rs. 1,000/- have filed the present petition. 2. Shri Bhokarikar, the learned counsel submits that there 2 wp 5753.11 was no intention on the part of petitioners to prolong the matter. The court was on long leave for more than six months. The petitioners reside at Pune. As such, the petitioners did not have the knowledge of the new Judge taking over the charge of the said Court. As such, on the date fixed when the right was forfeited, the petitioners could not remain present. The absence of the petitioners on the said date was not intentional. The petitioners were not responsible for the delay. But as the Court was on leave the matter could not be taken up. According to the learned counsel, when there is no fault of the petitioners. The cost should not have been levied. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Vernekar Industries Vs. Starit Engineering Co. Pvt. Ltd. reported in 1985 (2) B. C. R. 119. 3. The Court had forfeited the right of the petitioners to adduce the evidence. Thereafter, the petitioners had filed an application and to give them an opportunity to adduce the evidence the Trial Court vide the impugned order allowed the said application and granted opportunity to the petitioners to adduce the evidence subject to payment of cost of Rs. 1,000/-. No error of jurisdiction has been committed by the Court while 3 wp 5753.11 passing the said order. The judgment of the learned Single Judge in a case Vernekar Industries referred supra deals with the interpretation of Sec. 35-B of the Code of Civil Procedure. It also lays down that the said restriction does not apply for notice of Court for restoration of suit. The right and entitlement to cost is tobe worked out on the basis of order and not otherwise. In the present case, the cost was not levied for adjournment, but the same was levied while setting aside the order of forfeiting the right of the petitioners and to give an opportunity to adduce the evidence. 5. In the light of the above, no interference is called for. As such, the writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11