1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.2993 OF 2009 Smt.Nanda Bhairu Dongare & Ors. .. Petitioners Versus Vishnu Dattatraya Vyavhare .. Respondent Mr.Surel S. Shah for the petitioners. Mr.Sandeep Salunkhe for respondent. CORAM : A.S.OKA, J. DATE : 7 th August 2009. P.C.: . Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent. Considering the narrow controversy involved, the writ petition is forthwith taken up for final disposal. 2. The petitioners are the plaintiffs and the respondent is the defendant. The petitioners examined a witness. The trial Court thereafter passed an order of closure of the evidence of the petitioners. On application made by the petitioners at Exhibit 37, by order dated 02 nd January 2009 the said order was set aside subject to the petitioners paying costs of Rs. 3,000/-. It appears that on 15 th January 2009 when the suit was fixed for recording of evidence of the 2 witness of the petitioners, none appeared for the petitioners. The witness was not present and therefore the evidence of the petitioners was treated as closed. The Court also noted that the amount of costs in terms of order dated 02 nd January 2009 was not paid by the petitioners. On the very day an application was made by the petitioners at Exhibit 39 praying for setting aside the said order. It is pointed out in the said application that the 2 nd witness of the petitioners reached the Court late. By the impugned order dated 22 nd January 2009, the said application has been rejected by the learned trial Judge. 3. The learned counsel appearing for the petitioners submitted that the application at Exhibit 39 itself records that the 2 nd witness of the petitioners reached the Court after the order was passed. He pointed out that the reasons for the said witness reaching late were also recorded in the said application. He submitted that if an opportunity is given, the petitioners will keep their witnesses present on a date fixed by this Court. The learned counsel appearing for the respondent opposed the petition by contending that the impugned order shows that the petitioners have been negligent in 3 prosecuting the suit and no interference is called for. 4. I have carefully considered the submissions. The 1 st petitioner is a woman and 2 nd to 4 th petitioners are her minor children. It is true that on earlier occasion evidence of the petitioners was closed. The application at Exhibit 39 records that the 2 nd witness who was to be examined by the petitioners reached the Court late on 15 th January 2009. The Court passed an order closing the evidence of the petitioners. On the same day the application at Exhibit 39 was filed. 5. In terms of the order passed by this Court on 23 rd March 2009, a sum of Rs.3,000/- has been deposited by the petitioners in this Court. Considering the aforesaid facts, one more opportunity deserves to be granted to the petitioners to examine their witnesses. 6. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 22 nd January 2009 is quashed and set aside and application at Exhibit 39 made by the petitioners is allowed. (b) The learned trial Judge shall post the suit for recording of evidence on 01 st September 2009. 4 It will be the responsibility of the petitioners to keep their witnesses present on the said date and the petitioners will not seek adjournment on the ground that the witnesses are not present. (c) After the petitioners examine their witnesses, the respondent will be entitled to file further affidavit in lieu of evidence. It will be also open for the respondent to lead further evidence. (d) The petition is allowed in above terms. (e) The respondent is permitted to withdraw a sum of Rs.3,000/- deposited in this Court. (A.S.OKA,J)