1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.58 OF 2008 IN WRIT PETITION NO.3453 OF 1991 Mohamed Ali Gulam Rasool Shaikh & Ors. ..Petitioners. V/s. Maharashtra Housing & Area Development Authority & Ors. ..Respondents. Petitioner No.1 present in person a/w.Mr.A.S.Khatib. Mr.Milind More, AGP for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 28, 2008. DATE : MARCH 28, 2008. DATE : MARCH 28, 2008. P.C. : P.C. : P.C. : 1. The Petitioner again appears in person. Since the Advocate for the Petitioner was not available, matter was kept back at the request of the Petitioner. When the other left over matters were proceeded, the Associate displayed information on the Electronic Board that the Advocate for the Petitioner should immediately report in Court Room No.10. Inspite of the said intimation, the Advocate for the Petitioner has not chosen to appear. The Petitioner, who appears in person, states that he has already informed his advocate, who was expected to reach within five minutes. Even after waiting for ten 2 minutes, the advocate has not appeared in Court. In the circumstances, I am proceeding with the hearing of the present Motion. 2. The reliefs claimed in the present Motion read thus: (a) That the Order dated 21st January, 2008 be recalled/reviewed and the above said Writ Petition be restored to file for re-hearing of the case on merits on such terms and conditions as this Honourable Court deems fit and proper. (b) For costs of the Notice of Motion. (c) For such other and further reliefs as the nature and the circumstances of the case may require. 3. The Petitioner has approached this Court for recall of the Order dated 21st January, 2008 on the assertion that it was an exparte order. It is not so. The Order passed on 21st January, 2008 is on merits. Even on that date, the Advocate for Petitioner did not appear before the Court. The Petitioner appeared in person and addressed the Court, which fact is recorded in the Order itself. In that sense, it is not an exparte order as such. On this finding, the prayer for recall of the Order will have to be turned down. 3 4. Insofar as the prayer for Review is concerned, the Petitioner, if so advised will have to take out formal Review Petition, which will be considered on its own merits. The present Motion cannot be allowed to be converted into Review Petition, having regard to the explicit requirements of Rule 871 of the Bombay High Court Original Side Rule. 5. For the aforesaid reasons, this Motion is dismissed with liberty to the Petitioner to file review Petition, if so advised. All questions in the Review Petition will be decided on its own merits. It is made clear that this Order is not an expression on the merits of the contentions raised in the present Motion. 6. After this Order is fully dictated and the Court was about to rise, the Advocate for the Petitioner has appeared and informs that he was delayed because of some personal difficulty on account of accident encountered by him, while reaching the Court. For the reasons already recorded, no other order can be passed. The Petitioner will be free to take recourse to such 4 remedy, as may be permissible by law. 7. Counsel for the Petitioner now cited Judgment of the Apex Court in the case of Ram Lakhan V/s. Ram Lakhan V/s. Ram Lakhan V/s. Presiding Officer & ors.reported in AIR 2001 SC 286, Presiding Officer & ors.reported in AIR 2001 SC 286, Presiding Officer & ors.reported in AIR 2001 SC 286, which has taken the view that when the advocate on record was unable to appear due to illhealth, the Order can be recalled in exercise of powers under Order 9 Rule 13 of CPC. In the present case, I have already recorded as of fact that the Petitioner had appeared in person before me and addressed the Court on the earlier occasion, which contention has been considered in the Order under challenge. Thus understood, it is not a case of exparte order or matter decided due to default of the Petitioner. The only proper remedy available to the Petitioner, as aforesaid, is by way of Review Petition, which will have to be pursued in accord with the rules framed by the Bombay High Court. 8. Motion is disposed off on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)