IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6821 OF 2004 PETITION NO. 6821 OF 2004 PETITION NO. 6821 OF 2004 Dattu Rambhau Katake ] .. Petitioner Versus 1. Smt. Sarla Chintaman Chandrachud, ] since deceased through L/Rs. ] .. Respondents Mr. R.S. Doctor i/b Mr.S.V. Sadavarte for the petitioner. CORAM: R.M. LODHA, J. DATED: 21ST JULY, 2006 P.C. : . An application was made by the plaintiff under Mumbai Fragmentation and Consolidation Act, 1947 for making Reference to the Inspector of Land Records, Pune. The said application was made on 23rd August, 1998. For one reason or the other, the application remained unheard. An application was made by the plaintiff requesting the trial Court for hearing the application (Exh-29) made by him under Section 36B of the Act of 1947 for Reference to the Inspector, Land Records, Pune. The said application (Exh-29) was posted before the Court on 2nd November, 2001. Neither the plaintiff nor his Advocate was present and consequently, the trial Court observed that plaintiff was not interested in : 2 : prosecuting the application and ordered that the application be filed. This order passed by the trial Court on 2nd November, 2001 is under challenge in the Writ Petition. 2. Obviously, if the plaintiff and his Advocate were not present when the case was called out, the Trial Court cannot be said to have erred in ordering that application be filed. The counsel for the petitioner submits that the petitioner could have made an application for restoration of the application (Exh-29), but, since the order only reads "Application is filed.", no application for restoration was made. Having perused the order, I am of the view that it was open to the petitioner to make an application before the trial Court for restoration of the application (Exh-29) and for recalling the order dated 2nd November, 2001. 3. Be that as it may, insofar as this Court is concerned, I find no justifiable ground to interfere with the impugned order dated 2nd November, 2001. However, the petitioner shall be at liberty to make an application for restoration of the application (Exh-29) and upon such application being made, the Trial Court shall consider the same in accordance with law after hearing both parties. : 3 : Sd/- [R.M. [R.M. [R.M. LODHA, J.] LODHA, J.] LODHA, J.]