SM 1 44.ao.1010.11Om IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1010 OF 2011 WITH CIVIL APPLICATION NO. 1352 OF 2011 IN APPEAL FROM ORDER NO. 1010 OF 2011 Mukta Associates ....Appellant. Versus Shri. Nivruti Devram Mate since deceased through heirs Shri. Shivaji N. Mate and another ....Respondents. ____________ Mr. P. S. Dani i/b D. S. Patil for the Appellant. CORAM: R. M. BORDE, J. DATED : DECEMBER 12, 2011. P.C.: An application tendered by the original plaintiff/ appellant herein for setting aside the order of dismissal passed by the Trial Court on 18th September, 2009 has been rejected by the same court and the said order is subject matter of challenge in this appeal from order. 2. The plaintiff herein presented a suit claiming specific performance of agreement. It is the case of the plaintiff that the disputed property has been agreed to be purchased for consideration of Rs.5,70,000/-. The plaintiff has paid consideration amount to the tune of Rs.4,92,500/-. However, the defendants/respondents herein have refused to execute the Development Agreement as such the plaintiff was constrained to SM 2 44.ao.1010.11Om file suit No. 360 of 2005. The suit was listed for recording of evidence on various dates, and the plaintiff failed to submit the evidence, the suit came to be dismissed for want of prosecution on 18th September, 2009. The plaintiff presented MCA No. 213 of 2009 requesting the court to set aside the order of dismissal of the suit. It is the contention of the plaintiff that during the pendency of the proceedings, defendant no. 1 expired and purshis to that effect was presented by other defendants on 13th February, 2009. The plaintiff did take steps and filed purshis informing that the legal representatives are already on record and there is no need to file application. The Trial Court, thereafter, fixed the matter for recording evidence. However, it is contended that the plaintiff could not lead his evidence and the suit came to be dismissed for want of prosecution. It is the contention of the plaintiff that the matter relate to immovable property and almost whole amount of consideration has been paid by the plaintiff to the defendants and it would be in the interest of justice to extend a further opportunity to the appellant/original plaintiff to lead his evidence. 3. The respondents, inspite of service of notice did not file their appearance. This court by order dated 27th November, 2011 directed to reissue the notice to the respondents with information that the appeal from order is likely to be taken up for final disposal at the admission stage. However, inspite of service of second notice also, the respondents/ defendants did not file appearance. In these circumstances, the case put up by the plaintiff is required to be considered. It is evident from the contents of plaint that the total consideration amount was settled at Rs.5,70,000/-; out of SM 3 44.ao.1010.11Om which an amount of Rs.4,92,500/- is stated to have been paid. The plaintiff is claiming specific performance of agreement in respect of immovable property. Considering the totality of the circumstances, I am of the opinion that the plaintiff needs to be given one more opportunity to present his case before the Trial Court. The plaintiff can be put to terms in respect of payment of costs so as to compensate the defendants for the inconvenience caused to them. 4. Appeal from order deserves to be allowed and same is, accordingly, allowed. The order dated 18th September, 2011 passed by the Trial Court in Suit No. 21 of 2009 is quashed and set aside and the Miscellaneous Civil Application presented by the plaintiff is deemed to be allowed subject to payment of costs of Rs.5,000/-. The plaintiff shall deposit the amount of costs with the Trial Court within a period of four weeks from toady. On making deposit of amount by the plaintiff in the Trail Court, the defendants/respondents would be at liberty to withdraw the same. (R. M. BORDE, J.)