-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION CIVIL CIVIL CIVIL APPLICATION APPLICATION APPLICATION NO.1358 OF 2008 NO.1358 OF 2008 NO.1358 OF 2008 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.5973 OF 1997 NO.5973 OF 1997 NO.5973 OF 1997 K.S. Acharya ...Petitioner v/s Union of India and ors. ...Respondents Mr Ajay Misar for Petitioner. None for Respondents. CORAM : D.K. DESHMUKH AND R.Y. GANOO JJ. DATE : 23RD JUNE 2008. -2- P.C. :- 1. This is a civil application taken out by the petitioner for restoration of his civil application No.2326 of 2004. Civil application No.2326 of 2004 was taken out for restoration of the petition. The necessary facts are that writ petition No.5973 of 1997 came before the Division Bench of this Court on 10th September 2001 and the Court passed following order :- "The petitioner has retired from the services, however a claim is made for his salary. Proper remedy in the facts of this case is civil suit. If the learned counsel for petitioner desires to argue on the point of maintainability, in spite of filing civil suit, put up for final hearing in due course." . The writ petition came up before another Division Bench of this Court on 30th April 2003. On that day, none appeared for the petitioner and the Division Bench passed following order :- "3. Thereafter the matter came up before us on 1.4.2003 and the matter was adjourned due to indisposition of the arguing Advocate Mr -3- Niranjan Shetty. Nobody appears for the petitioner today. As already observed in the order dated 10.9.2001 it was for the petitioner to argue on the point of maintainability as this Court had observed for the claim of salary, proper remedy in the facts of this case is civil suit." 4. Writ petition is accordingly dismissed. Rule is discharged. No costs." . It is obvious that the Court has dismissed the petition not for default but on merits on the ground that the petitioner has an alternate remedy. The proper remedy therefore against this order was either to challenge that order in appeal or to file review application. Perusal of this civil application shows that there are no grounds raised in the civil application No.2326 of 2004. Perusal of he record shows that when that civil application came up before the Division Bench of this Court, by order dated 24th September 2004 the Division Bench noted that the order has been passed on merits and therefore application be treated as review application of that order. Thereafter, the petitioner ought to have amended civil application and raised grounds for review, but the petitioner did not bother to do that. Ultimately it -4- again came before the Court on 5th October 2007 and the Court again dismissed the civil application. It was again restored on 29th November 2007. The petitioner again remained absent on 10th January 2008 and it was again dismissed for default. Even assuming that the petitioner had good reasons to remain absent, in the absence of any ground being raised for review of the order in the civil application, there is no point in restoring the civil application. The petitioner was clearly told by the order passed by the Court dated 24th September 2004 that as the order dismissing the petition is an order on merit, his application can only be for review and therefore, it was for the petitioner to amend the civil application and raised grounds. Restoration of that civil application would be an exercise in futility. Civil application No.1358 of 2008 is therefore disposed off. Office to treat writ petition and all civil applications as disposed off. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( R.Y. GANOO J.)