1 repw9-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION REVIEW PETITION NO. 9 OF 2011 IN CIVIL APPLICATION NO. 1040 OF 2011 IN SECOND APPEAL NO.396 OF 2010 Smt. Kalpana Bhikrao Sonavane .. Petitioner V/s. Shri Arunkumar Rupchand Sharma & Anr. .. Respondents ..... Mr. M. M. Sathaye for the petitioner. Mr. N. R. Bubna for respondent No.1. ..... CORAM : A.S.OKA, J. DATE : OCTOBER 18, 2011. P.C.: Heard the learned counsel appearing for the review petitioner and the learned counsel appearing for the first respondent. 2. The first respondent is the appellant in the Second Appeal. The challenge in the Second Appeal was to a decree for possession passed in favour of the petitioner and the second respondent. 3. The Second Appeal was dismissed. However, this Court granted time to vacate the suit premises till 31st July, 2011 to the first respondent subject to condition of the first respondent 2 repw9-11 and his adult members of the family furnishing usual undertakings to vacate the suit premises. Accordingly undertaking was filed. 4. Civil Application No.1040 of 2011 was taken out by the first respondent seeking extension of time to vacate the suit premises. On 28th July, 2011, this Court extended the time to vacate till 31st December, 2011 subject to filling fresh undertakings in terms of the earlier order passed on the Second Appeal. 5. Review is sought of the said subsequent order dated 28th July, 2011. The review is sought on the ground that in terms of the Clause (3) of the earlier undertaking dated 23rd August, 2010, the first respondent has failed to make any payment. The contention of the petitioner is that when the order dated 28th July, 2011 was passed, it was not pointed out to this Court that there was no compliance made with clause (3) of the earlier undertaking. The ground for review is that when the Civil Application was heard, the review petitioner's Advocate was not aware that the entire arrears in terms of the said undertaking were not paid. Thus, the review is also sought on the ground that the first respondent has suppressed the material facts from this Court. 3 repw9-11 6. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent. The learned counsel appearing for the petitioner submitted that a gross breach was committed by the first respondent of the first undertaking. The learned counsel appearing for the first respondent accepted that the amount as provided in Clause (3) of the earlier undertaking was not deposited. He states that the first respondent is tendering an unconditional apology. He stated that the first respondent has paid by way of a demand draft a sum of Rs.29,375/- to the petitioner which includes the entire arrears as well as costs amount of Rs.15,000/-. 7. Before filing Civil Application No.1040 of 2011 and before praying for extension of time to vacate, the first respondent ought to have deposited all the arrears and complied with the undertaking. That was not done and the fact that the earlier undertaking was not complied with was not pointed out to this Court when the Civil Application was heard on 28th July, 2011. 8. Now the first respondent has paid the entire arrears along with a sum of Rs.15,000/- towards costs to the review petitioner. 4 repw9-11 9. In view of the apology tendered by the petitioner and the payment of costs along with payment of entire arrears, this is not a case where an action can be initiated under the Contempt of Courts Act, 1972 for committing breach of undertaking. 10. However, the fact remains that while moving the Court with Civil Application for extension of time to vacate, the material fact was not pointed out to this Court though the first respondent had knowledge of the same. The default on the part of the first respondent is very serious and, therefore, though the order granting extension of time cannot be recalled in its entirety, the period deserves to be reduced. Accordingly, the order dated 28th July, 2011 deserves to be modified by reducing the period till 20th December, 2011. 11. Hence, I pass the following order: :: O R D E R :: i. The apology tendered by the first respondent through his Advocate is accepted. ii. The order dated 28th July, 2011 is modified and it is directed that the decree for possession shall 5 repw9-11 not be executed till 20th December, 2011 subject to compliance of the conditions incorporated in the said order. iii. As the first respondent has paid a sum of Rs.15,000/- to the petitioner by way of costs, no separate order is passed as regards the costs. iv. Review petition is disposed of on above terms. (A.S.OKA, J.)