jpc ca1851-11wp7023-02.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1851 OF 2011 IN CIVIL WRIT PETITION NO. 7023 OF 2002 Baburao Dharu Khanekar and others ... Applicants Versus Smt. Anasuya Haribhau Khanekar and others ... Respondents Mr. R. M. Haridas i/by Mr. Sunil U. Khaire for the applicants Mr. Maravoor Wamorkar i/by Maravoor Wamorkar & Co. for respondent Nos. 3 to 10 CORAM: R. M. SAVANT, J. DATED : 2nd December, 2011 P.C. : 1. The above Civil Application has been filed for restoration of the Petition which has been dismissed for non prosecution by an order dated 29th March, 2010 as none had appeared on behalf of the petitioners on the said date when the petition was placed for final hearing. The reason why the petitioners were unrepresented on the said day have been stated in the Civil Application. It is their case that they had engaged Mr. V. G. Majumdar who unfortunately expired some time in the year 2010 and when they contacted his office, they were told by his junior that though Shri Majumdar is dead, they would look jpc ca1851-11wp7023-02.sxw 2 after the matter and relying upon the said assurance, they did not contact the junior advocate of Shri Majmudar thereafter. The Petition appeared on 29th March, 2010 for final hearing. As the petitioners were labouring under the impression that they would be represented and since they were not informed of the said date they did not remain present in the Court, resulting in the dismissal of the petition on the said day. It is their case they they became aware of the dismissal of the petition when notice dated 11th April, 2011 came to be issued by the Taluka Inspector of Land Records for demarcation of land pursuant to the decree passed. It is thereafter, that they made enquiries and became aware of the order dated 29th March, 2011 passed by this Court dismissing the above petition for default. It is thereafter on 19th May, 2011 that they have filed the instant Civil Application. 2. The Civil Application has been opposed by the Respondent Nos. 3 to 10 who are out of the decree holders. It is their case that the decree in question has already been executed. It is further their case that the conduct of the applicants is such, that they are not entitled for restoration as the applicants, even during the pendency of the above petition, have sold out certain properties which were subject to partition. In my view, the objections are impinging upon the merits of jpc ca1851-11wp7023-02.sxw 3 the writ petition and can be considered at the hearing of the petition. However, the fact remains that as the petition has been dismissed for non prosecution on account of non appearance of the applicants and their advocate on the said date, in the said context, the explanation given by the applicants in the Civil Application deserves acceptance. The respondent nos. 3 to 10 can be compensated for the inconvenience that is caused to them. The Civil Application is accordingly allowed. The order dated 29th March, 2010 dismissing the Writ Petition for default is set aside. Resultantly, the above Writ Petition is restored to file. 3. In the facts and circumstances as disclosed above, in my view, it would be appropriate to impose costs of Rs. 10,000/- on the applicants, to be paid within a period of four weeks from date to the respondent nos. 3 to 10. The payment of the said costs is a condition precedent and unless the said costs are paid and evidence of the same is placed in the registry of this Court, the benefit of this order would not ennure to the applicants. In the event the costs are not paid, the above application would be deemed to have been dismissed and the dismissal of the petition would then stand. jpc ca1851-11wp7023-02.sxw 4 4. The Respondent No.3 Mr. Kashinath Haribhau Khanekar is present in the Court. Shri Wamorkar, the learned counsel appearing for the respondents states that the costs may be paid over to Kashinath Haribhau Khanekar. On receipt of the said costs, the said Kashinath to furnish a receipt to the applicants. (R. M. SAVANT, J.)