(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7331 OF 2009 1. Mrs. Anita w/o. Nandlal Gunwani, Age : 58 years, Occupation : Household. 2. Mr. Vikas s/o. Nandlal Gunwani, Age : 34 years, Occupation : Business, Both R/o. H.No. 1-6-80/P, Gurukripa Naralibagh, Aurangabad. 3. Mr. Vinod Nandlal Gunwani, Age : 38 years, Occupation : Business, R/o. H.No. 1-6-80/P, Gurukripa Naralibagh, Aurangabad. 4. Mrs. Jyoti w/o. Naresh Basantani, Age : 31 years, Occupation : Household, R/o. 11/B, Parshwanath Nagar, Kesarbagh Road, Near Vinay, Indore M.P. 5. Mrs. Seema w/o. Prem Sitlani, Age : 31 years, Occupation : Household, R/o. House No. 96, Kranti, Kriplani Nagar, Annaupra Road, Indore M.P. .. Petitioners. (2) versus The Marathwada University, Aurangabad, Through its Registrar, Marathwada University, Aurangabad. .. Respondent. .......................... Mr. A.D. Kasliwal, Advocate, for the petitioners. Mr. M.N. Navandar, Advocate, holding for Mr. S.R. Malani, Advocate, for the respondent caveator. .......................... CORAM : B.R. GAVAI, J. DATE : 11TH NOVEMBER 2009. ORAL JUDGMENT : 1. The learned Counsel appearing for the petitioners seeks leave to transpose the respondent nos.2 to 4 as petitioner nos. 3 to 5. Leave granted. 2. Rule. Rule made returnable forthwith. Heard by consent. 3. By way of present petition, the petitioners have challenged (3) the order dated 17th March 2009, passed by the learned 7th Joint Civil Judge (Junior Division), Aurangabad, below Exhibit 1 in Regular Civil Suit No. 711/1991, thereby dismissing the suit for want of prosecution. The petitioners have also challenged the order dated 9th October 2009, passed by the learned Ad hoc District Judge-1, Aurangabad, in Miscellaneous Civil Appeal No. 79/2009, thereby dismissing the appeal filed by the present petitioner nos.1 and 2. 4. The plaintiffs, present petitioners, have filed a suit for declaration of ownership and perpetual injunction against the defendant, present respondent. It appears that the said suit is filed in the year 1991. In the suit, various adjournments were sought on behalf of the petitioners. Thereafter, the matter was fixed for evidence on various dates and on the said dates also, the matter was sought to be adjourned at the instance of the petitioners. When the matter was kept for evidence on 17th March 2009, again an application was made on behalf of the petitioners seeking an adjournment. The said application was rejected and the suit came to be dismissed for want of prosecution. On the said date itself, the petitioner made an application, that he was willing to lead evidence on the said date itself and, therefore, the matter should be restored. The said application also came to be rejected. 5. Being aggrieved thereby, appeal was preferred by the petitioners, being Miscellaneous Civil Appeal No. 79/2009. The appeal was also dismissed. 6. Mr. A.D. Kasliwal, learned Counsel appearing for the (4) petitioners, submits that when the petitioner had expressed his willingness to lead his evidence on the same day, the learned Judge of the trial court was not justified in rejecting the application for restoration of the suit. He submits that in the interest of justice, the suit ought to have been restored and the trial court would have permitted the petitioner to lead evidence. 7. Mr. M.N. Navandar, learned Counsel appearing for the respondent, submits that the conduct of the petitioners would show that the petitioners have been trying to prolong the proceedings from 1991, for one reason or the other. He submits that though this court has directed to dispose of the suit within a period of six months, vide order dated 15th February 2008, in Writ Petition No. 2295/2007, the petitioners have not rendered cooperation for disposal of the suit within the stipulated period. He, therefore, submits that no interference is warranted in the concurrent findings. 8. Perusal of the orders impugned would reveal that both the courts, in detail, have discussed the conduct of the present petitioners. It has been found that since 1991, the suit could not be heard and disposed of, for one reason or the other. It has been found that the petitioners were seeking adjournments after adjournments, on one pretext or the other. In that view of the matter, I do not find that any error was committed by the trial court in dismissing the suit for want of prosecution. 9. However, it is pertinent to note that immediately after dismissal of the suit, the present petitioners have filed an application for (5) restoration of the suit and have also shown willingness to lead evidence. No doubt, that the conduct of the parties is a relevant factor. However, it is to be seen that in the present case, after dismissal of the suit, the petitioners have shown willingness to lead evidence on the same day itself. In that view of the matter, I find that the trial court ought to have taken a lenient view and permitted the petitioners to lead evidence. In so far as the prejudice that would be caused to the respondent is concerned, the same could be compensated by saddling costs. In that view of the matter, I am inclined to allow the petition. 10. In the result, the petition is allowed. (i) The impugned order dated 17th March 2009, passed by the learned 7th Joint Civil Judge (Junior Division), Aurangabad, below Exhibit 1 in Regular Civil Suit No. 711/1991, thereby dismissing the suit for want of prosecution, is quashed and set aside. So also, the order dated 9th October 2009, passed by the learned Ad hoc District Judge-1, Aurangabad, in Miscellaneous Civil Appeal No. 79/2009, thereby dismissing the appeal filed by the present petitioner nos.1 and 2, is quashed and set aside. (ii) The application filed by the petitioners, original plaintiffs, for restoration of Regular Civil Suit No. 711/1991, is allowed, however, subject to the payment of costs quantified at Rs. 30,000/- [Rupees Thirty Thousand] payable by the petitioners collectively. The costs be deposited in the trial court within a period of two weeks from today. (6) (iii) The deposit of costs is a pre-condition for allowing the petition. In the event, the costs, as aforesaid, is not deposited, the petition shall stand dismissed and the impugned orders of the trial court and appellate court shall stand automatically revived, without further reference to this court. (iv) On deposit of costs, the respondent (original defendant) shall be at liberty to withdraw the same. (v) Parties shall appear before the trial court on 25th November 2009. In that view of the matter, requirement of formal notice shall stand waived. It is made clear that the petitioners shall lead their evidence on the said date itself, or on any other date fixed by the trial court and no further adjournments shall be granted to the petitioners for leading evidence. (vi) Needless to state, that since this court had already, vide order dated 15th February 2008, directed to dispose of the suit within the stipulated period, it is hereby directed that the trial court shall dispose of the suit, on its own merits, as expeditiously as possible and, in any case, within a period of three months from today. It is made clear that, if necessary, the proceedings shall be held on day-to-day basis. 11. Rule is made absolute in the aforesaid terms. ( B.R. GAVAI ) JUDGE bgp/wp7331