:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 129 OF 2008 WITH CIVIL APPLICATION NO. 329 OF 2007 Smt. Tilottama Vijay Lele ..Appellant Vs. Shri Sakharam Lele ..Respondent Mrs. Deepa Chavan i/by Jyoti Chavan for appellant. Mr. Umesh Ghurey for respondent. CORAM: CORAM: CORAM: B.H. MARLAPALLE & B.H. MARLAPALLE & B.H. MARLAPALLE & S.J. S.J. S.J. KATHAWALLA,JJ. KATHAWALLA,JJ. KATHAWALLA,JJ. Dated: Dated: Dated: September September September 05, 2008. 05, 2008. 05, 2008. P.C.: P.C.: P.C.: 1. Heard Mrs. Deepa Chavan the learned counsel for the appellant-wife and Mr. Umesh Ghurey, the learned counsel for the respondent-husband. 2. Admit. The respondent waives service. Printing dispensed with as private paper book has been filed. By consent of the parties, the appeal is taken up for final hearing forthwith. :2: 3. This appeal filed under Section 19 of the Family Courts Act is directed against the order dated 14/3/2006 passed by the learned Principal Judge, Family Court at Mumbai, thereby dismissing Petition No.B-43 of 2001 filed by the appellant-wife seeking declarations that the suit premises, namely, B-6, Ajanta, 1st floor, Udar Co-Op. Housing Society Ltd., S.V. Road, Goregaon (West), Bombay 400 062, being the matrimonial home of the petitioner, she and her children have the right to continue their residence therein without any interference whatsoever by the respondent or any of his servants or agents until they are evicted therefrom by due process of law. The said order reads as under:- "Exam-in-chief is filed in June 2005. Since then, there is no progress in the matter. The Petitioner’s advocate is continuously remaining absent. Petitioner is also remaining absent, many times. Today also the petitioner is absent, though on the last date the direction was given to proceed with the matter today, as a last chance. It appears :3: that the petitioner is not interested in proceeding, hence Petition is dismissed. No order as to costs." 4. The learned counsel for the appellant-wife further invited our attention to the order dated 19/1/2007 passed by the very same learned Judge thereby rejecting Civil Misc. Application No. 54 of 2006 which was filed by the appellant for restoration of her petition by setting aside the ex parte order dated 14/3/2006. 5. A certified true copy of the Roznama in Petition No. B-43 of 2001 has been placed on record in the private paper book and it is clear from the same that both the parties were represented through their learned Advocates. The Roznama dated 16/6/2005 states "the petitioner was present and respondent was absent but his son was present. Deposition of the petitioner in the form of affidavit taken on record". On 26/8/2005 the petitioner was present, respondent was absent. On 6/10/2005 the petitioner was absent :4: and so was her advocate as well as the respondent. On 17/11/2005 the petitioner and her advocate were absent, so was the case of the respondent. On 18/1/2006 the petitioner was present whereas her advocate was absent, respondent and his advocate were also absent. Last chance to the petitioner to proceed with her matter next time, was the order. On 14/3/2006 the petitioner and her advocate were absent and so was the case of the respondent. The learned Principal Judge of the Family Court proceeded to pass the impugned order on 14/3/2006. . It is thus clear from the Roznama that the petitioner and/or her advocate were not absent before the Family Court on all the dates after June 2005. Out of the four dates, after 27/7/2005 which was a day on which court holiday was declared because of the heavy floods on the streets of the Mumbai. There were four dates prior to 14/3/2006 and on two dates the petitioner was present and on the remaining two dates she was absent. The learned Judge of the Family Court was, therefore, not right in concluding that the petitioner or her advocate absent continuously. The :5: petitioner had submitted her affidavit by examination-in-chief and she was to offer herself for cross-examination but on 14/3/2006 the respondent as well as his advocate was absent. If the respondent and his advocate were present and if the petitioner was absent, thereby not offering herself for cross-examination by the respondent, the court could have been justified in imposing costs on the next date rather than dismissing the petition for non prosecution. We are, therefore, satisfied that interest of justice would be better served if the petition filed by the appellant is restored by setting aside the impugned order. 6. In the premises, this appeal is allowed and the impugned order dated 14/3/2006 passed in Petition No.B-43 of 2001 is hereby set aside. The Petition No.B-43 of 2001 is restored to the file of the Family Court at Mumbai for de novo trial. Both the parties to appear before the Family Court on 17th September, 2008 and the Family Court would fix the date for cross-examination of petitioner-wife. On remand, the petition to be finally heard and decided before 19th :6: December, 2008. Ad-interim order passed by this court on 29th April, 2008 shall continue to operate till the Petition No.B-43 of 2001 is finally disposed off, on remand. Costs in cause. 7. In view of the above, Civil Application No.329 of 2007 does not survive and the same shall stand disposed off. (S.J. (S.J. (S.J. Kathawalla,J.) Kathawalla,J.) Kathawalla,J.) (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)