1 W.P.No.2320.10 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2320 OF 2010 Shri Sunil Yashavant Kumbhar ... Petitioner v/s The Secretary, Co-ordination Committee, Sangli Shikshan Sanstha & ors. ... Respondents Mr.Vijay Killedar for the petitioner. Mr.K.J.Patil for respondent Nos.1 and 2. Mr.S.D.Rayrikar, A.G.P. for respondent No.3. CORAM: SMT.NISHITA MHATRE, J. DATED: 2ND SEPTEMBER, 2010 P.C.: 1. The petition has been filed impugning the order passed by the School Tribunal in Misc. Application No.26 of 2008. By this order the School Tribunal has dismissed the application filed by the petitioner for restoration of his appeal. It appears that the appeal was filed on 6.7.2001 by the petitioner. A reply was filed by respondent Nos.1 and 2. It was adjourned on several occasions for one reason or the 2 W.P.No.2320.10 other. The appeal was then fixed on 25.9.2008 when neither the petitioner nor his advocate were present before the Court when the matter was called out. The Tribunal therefore dismissed the appeal for default. 2. The petitioner then filed an application for restoration of the appeal by contending that he is entitled to such relief under Order 9 Rule 13 of the Code of Civil Procedure. The respondent opposed that application. The Tribunal dismissed the application by concluding that Order 9 Rule 13 of the Code of Civil Procedure has no application in the present case. It was held that those provisions of law relate to setting aside the ex-parte decree passed against the defendant. In these circumstances, the application was dismissed. 3. The learned advocate for the petitioner takes exception to this order by contending that merely because the wrong Order and Rule of the Code of Civil Procedure was mentioned, the petitioner’s application ought not to have been dismissed. Mr.Killedar, the learned advocate rightly points out that it is now well settled that the appeal under the Maharashtra Employees Private Schools Act is to be heard and decided as an appeal filed under the Code of Civil 3 W.P.No.2320.10 Procedure and all powers of the appellate Court which are conferred under the Code of Civil Procedure are available to the Tribunal. He points out that it is true that the application should have been moved under Order 41 Rule 19. He, therefore, submits that the application be allowed. 4. In my opinion, the Tribunal has committed a serious error of law in not considering the substance of the application filed before it rather than being more concerned with the provisions of law mentioned. Merely labeling of the application as one under Order 9 Rule 13 should not, in my opinion, result in the application being dismissed. The appeal has been dismissed for default. The application undoubtedly indicates that it has been preferred for restoration of the appeal. The Tribunal could have therefore restored the application considering it as an application under Order 41 Rule 19 of the Code of Civil Procedure. 5. Accordingly, the order of the Tribunal is set aside. 6. The appeal is restored to file. 7. Writ petition disposed of accordingly. ..... 4 W.P.No.2320.10