1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION WRIT PETITION NO. 5483 OF 2009 Sow. Taramati Kalyan Hajare Age 48 years, Occ. Household & Agri, R/o. Sakat (Kh) Tq. Paranda, Dist. Osmanabad. .. petitioners Versus 1. Allaudin S/o. Shahabuddin Shaikh Age 72 yearrs, Occ. Agri. R/o. Sakat (Kh). Tq. Paranda, Dist. Osmanabad. 2. Habib S/o. Allauddin Shaikh Age 42 years, Occ. Agri., R/o. As above. 3. Dattatraya S/o. Parmeshwar Deokar Age 19 years, Occ. Agri. R/o. As above. 4. Ranjit S/o. Ankush Deokar Age 18 years, Occ. Agri, R/o. As above. Respondents. 2 --- Mr. S.T. Ghute, Advocate for petitioner. Mr. S.S. Chaudhari, Advocate for the respondent No.1. CORAM : B.R. GAVAI, J. DATE : 7th November, 2009. ORAL ORDER :- 1] Rule. Rule made returnable forthwith. Heard by consent. 2] Since no order adverse to the interest of the respondent Nos. 2 to 4 is being passed, notice of Rule on the said respondents is waived. 3] The petitioner impugns in the present petition, the order dated 22nd July, 2009, vide which the application filed by the present petitioner for setting aside the order forfeiting the right of the petitioner to lead evidence has been rejected. 4] Shri Ghute, learned counsel for the petitioner submits that the trial court has grossly erred in rejecting the application filed by the present petitioner. He submits that the petitioner could not attend the proceedings on 16th April, 2009, on the ground of illness and as such, in the interest of justice, the learned trial court ought to have granted one chance to the petitioner. 5] Shri Chaudhari, learned counsel appearing for the respondent NO.1 vehemently opposes the application. He submits that the petitioner has 3 not been diligent at all in defending her case. On several occasions the petitioner has remained absent and as such, the right to defend the case was rightly forfeited. 6] From the order passed by the learned trial court, dated 22nd July, 2009, it can be seen that the learned trial court has given sound and cogent reasons as to why the application of the petitioner below Exhibit 113 has been rejected. From the perusal of the order, it can be seen that the petitioner has been seeking adjournments on one count or the other, which were earlier granted by the learned trial court. Though I do not find any perversity in the order passed by the learned trial court, however, I find that the in the interest of justice, the present petitioner should be given one more opportunity to defend her case and the matter is decided on merits. It can be seen that the suit filed by the respondent NO.1 is for a declaration of ownership of the land which are purchased by the present petitioner under a valid sale deed. In so far as the prejudice which is likely to be caused to the respondent NO.1, the same can be compensated by saddling costs. 7] In the result, the petition is allowed in the following terms : (i) The impugned order dated 22nd July, 2009 passed below Exhibit 113 is quashed and set side. The application filed by the petitioner at Exhibit 113 for setting aside the order forfeiting the right of the petitioner to defend her case and to lead evidence is allowed. However, this shall be subject to payment of costs which are quantified 4 at Rs.15,000/- to be deposited by the petitioner in the trial court within a period of 3 weeks from today. On deposit of such cost, the respondent NO.1 herein shall be entitled to withdraw the same. It is made clear that on failure to deposit costs as aforesaid by the petitioner, the petition shall stand automatically dismissed. (ii) The petitioner would remain present before the trial court on the next date and on the said date itself, the petitioner would begin her evidence. It is made clear that no unnecessary adjournments shall be granted by the learned trial court and the evidence of the petitioner would be completed as expeditiously as possible and in any case, within a period of 2 months from today. Rule made absolute in above terms. [B.R. GAVAI,J.] Grt/-