IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.240 OF 2007 IN REVIEW PETITION (STAMP) NO.17294 OF 2007 IN WRIT PETITION NO.4590 OF 2006 WITH CIVIL APPLICATION NO.347 OF 2007 Sameer Narayan Nirgude & Anr. ...Appellants Versus Narayan Damodar Nirgude & Anr. ...Respondents ...... Mr.K.S.Bapat i/b Mr.Avinash Fatangare for Appellants. None for Respondents. ...... CORAM: SWATANTER KUMAR, C.J. & CORAM: SWATANTER KUMAR, C.J. & CORAM: SWATANTER KUMAR, C.J. & V.M.KANADE, J. V.M.KANADE, J. V.M.KANADE, J. DATED: JUNE 25, 2008. DATED: JUNE 25, 2008. DATED: JUNE 25, 2008. P.C. P.C. P.C. 1. We have heard learned Counsel appearing for the Appellants. The Appeal is directed against the orders dated 3rd May 2007 passed in Civil Writ Petition No.4590 of 2006 and 24th August 2007 passed in Review Petition (Stamp) No.17294 of 2007. : 2 : 2. Notice of this Appeal was issued vide our order dated 26th March 2008. It was noticed that the Respondents had been served but despite service, nobody was present on their behalf. In the interest of justice, further hearing of the matter was deferred and the matter was ordered to be listed on 9th April 2008. None appeared for Respondents on 9th April 2008. Affidavit of service was also filed. Today again, when the case was called out for the first time, nobody was present on behalf of the Respondents. The same was kept back. When it has been recalled, still nobody appears for Respondents. Thus, the Appeal is ordered to be heard ex-parte. 3. As from the report, it is clear and which is the principal argument raised on behalf of the Appellants before us that the order dated 3rd May 2007 was passed in Civil Writ Petition No.4590 of 2006, adversely affecting the rights of the present Appellants, despite the fact that they were not impleaded as parties to that Writ Petition. The subject matter of the Civil Suit No.193 of 2002 is : 3 : common to that of Civil Writ Petition No.4590 of 2006. On these grounds, a Review Petition was also filed, which came to be dismissed vide order of the learned Single Judge dated 24th August 2007. 4. Learned Counsel appearing for the Appellants has interalia argued that no order should be passed in absence of Appellants, particularly, when they were not impleaded as party to the Petition in question. This fact is also ascertained from the impugned order where the learned Judge has noticed- "the Petitioners were not party to the said writ petition which was filed by the father of the present petitioner no.1 and husband of the present petitioner no.2." 5. We are in agreement with the contention raised that even if there was relation between the parties and the subject matter of both the proceedings was common, still it was required that the Appellants before us ought to have been impleaded as party before the order was passed. This was not the defect which could be cured under the principles of substantial justice. We find : 4 : merit in this contention. Hence, the following order: We allow the Appeal partially and set-aside the orders dated 3rd May 2007 and 24th August. We direct that the present Appellants shall be impleaded as parties and order afresh, after hearing the parties, shall be passed by the Court of competent jurisdiction. Civil Application and Appeal both are disposed of. No order as to costs. Sd/- CHIEF JUSTICE Sd/- V.M.KANADE, J.