SSK/ 1 WP/1255.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1255 OF 2011 Vinod Agarwal ....Petitioner Versus The Divisional Joint Registrar Co-operative Societies & Ors. ...Respondents Mr D G Rangras, Advocate for the petitioner. Mr Bharat Mehta, Advocate for respondent nos. 1 & 2. Mr R A Thorat i/b. Mr. P. D. Kadam, Advocate for respondent no.3. Ms Rekha Panchal, Advocate for respondent no.4. CORAM : RANJIT MORE, J. DATED : 9TH AUGUST, 2011. P.C.: Heard learned counsel for the petitioner, respondent nos. 1 & 2, respondent no.3 and respondent no.4. None appears on behalf of respondent nos. 5 & 6 despite service. The petitioner has filed affidavit of service to that effect. Even otherwise also, respondent nos. 5 & 6 are not contesting parties and in fact are supporting the petition. 2. The petitioner by filing this writ petition under Article 227 of the Constitution of India challenges the order of respondent no.1 whereby his application for restoration of Revision Application No.726 of 2003 came to be rejected. SSK/ 2 WP/1255.11 3. The brief facts giving rise to the present petition are as follows: The petitioner is the brother and the brother-in-law of respondent nos. 5 & 6 respectively. Respondent Nos. 5 and 6 are the members of respondent no.3-Society and/or the holders of a share certificate bearing no. 043 in respect of Flat No.602 on the 6th Floor in the A-Wing of the building known as Satyam-1 Co-operative Housing Society. It is the case of the petitioner that in pursuance of Family Arrangement dated 17th May, 2001, respondent nos. 5 & 6 agreed to transfer all their rights, title and interest in respect of the said shares and the said flat in his favour. The petitioner claims that he has been residing in the said flat along with respondent nos. 5 & 6 since May, 1990. In the above circumstances, he filed an application with respondent no.3 under Section 22 of the Maharashtra Co-operative Societies Act, 1960 (for short “the MCS Act”) for transferring the aforesaid share certificate and flat in his favour. The respondent no.3-Society refused to transfer the aforesaid share certificate and flat in favour of the petitioner without payment of sum of Rs.25,000/- as transfer charges. The petitioner challenged this order by way of an appeal under Section 23 of the MCS Act before respondent no.2. Respondent no.4 – Bank intervened in this appeal filed by the petitioner before respondent no.2 and opposed the petitioner’s prayer on the ground that respondent nos. 5 & 6 are liable to pay to respondent no.4-Bank an amount of Rs.45,00,000/- and odd in pursuance of Consent Award dated 24th August, 2000. The respondent no.2 dismissed the petitioner’s appeal, and therefore, the petitioner preferred a revision before respondent no.1. The said revision SSK/ 3 WP/1255.11 was dismissed for default by an order dated 9th March, 2009. The petitioner thereafter preferred a miscellaneous application for restoration of the said revision. The restoration application was also dismissed by respondent no.1 by order dated 30th April, 2011. This order is impugned in the present petition. 4. Learned counsel for the petitioner submitted that the petitioner engaged services of Advocate-D.N.Sonsale. However, Mr. Sonsale expired in the month of August, 2008. It is submitted that the petitioner came to know the factum of death of his Advocate in or about November, 2010 and thereafter, the petitioner perused rozanama of the revision and filed an application for restoration. Learned counsel submitted that the petitioner has shown sufficient cause to restore the revision application. 5. Learned counsel for respondent nos. 3 & 4 respectively opposed the writ petition. It is submitted that neither the petitioner nor his representative remained present for seven consecutive dates before respondent no.1- Divisional Joint Registrar. They further submitted that the petitioner was aware about the death of his Advocate – Mr. D.N.Sonsale, and therefore, the Divisional Joint Registrar rightly dismissed the petitioner’s revision for default and hence, no interference of this Court is called for in exercise of jurisdiction under Article 227 of the Constitution of India. 6. I have perused the impugned order. I have also perused the copy of rozanama of the revision annexed at Exhibit “B” page 23 to the petition. The SSK/ 4 WP/1255.11 Rozanama dated 10th February, 2009 discloses that the Advocate for respondent was present but the petitioner was not present, and therefore, the matter was adjourned to 9th March, 2009. On 9th March, 2009 also, the petitioner or his representative remained absent, and therefore, the impugned order was passed thereby dismissing the revision in default. The date of death of Advocate-D. N. Sonsale is not disclosed in the application filed by the petitioner for restoration of the said revision. However, in the above writ petition, it is mentioned that Advocate – Sonsale expired in the month of August, 2008. The date of death of the Advocate is not disputed by learned counsel appearing for the respondents. It is the specific case of the petitioner that he was not aware about the fact that his Advocate has expired. It is also his case that the office clerk who was attending the matter before respondent no.1-Divisional Joint Registrar left the office of the petitioner without intimating him the details of the same. The petitioner has made an averment that on 1st November, 2010 he came to know about the dismissal of his matter in default, and thereafter, he applied for a copy of rozanama from which he learnt that the matter was dismissed as his Advocate did not appear on the date of hearing. On inquiry, he learnt that his lawyer expired in the month of August, 2008. In these facts and circumstances, in my opinion, the interest of justice will be subserved, if the petitioner is allowed to contest his revision application before respondent no.1 on merits. The prejudice, if any to respondent nos. 3 & 4 can be compensated by directing the petitioner to pay cost to respondent nos. 3 & 4. The petition is accordingly disposed of by passing the following order : SSK/ 5 WP/1255.11 1. The impugned order dated 30th April, 2011 is quashed and set aside and the petitioner’s Revision Application No.726 of 2003 is restored to its file, subject to payment of cost of Rs.2000/- each to respondent nos.3 & 4 within a period of two weeks from today. 2. Respondent no.1- Divisional Joint Registrar shall hear the petitioner’s Revision Application No.726 of 2003 as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of this order. In the light of the above order, the writ petition is disposed of. (RANJIT MORE, J.)