: 1 : cwp-2728-11=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.2728 OF 2011 Pascal Postel .. Petitioner (Orig. Petitioner no.1) v/s. Soraiya Postel .. Respondent (Orig. Petitioner no.2) ......... Ms. Aarti Sathe a/w Mr. Kalpesh Turalkar for the petitioner Mr. Vikram Aditya Deshmukh for the respondent ......... CORAM : R.Y.GANOO, J. DATE : 8th APRIL, 2011 P.C. : 1. Rule. Rule made returnable forthwith. Learned Counsel for the respondent waives service. By consent, taken up for hearing. 2. Learned Judge of the Family Court was required to decide the application filed by the petitioner in the month of August 2008 for rectifying order dated 31st July, 2007 by including amended / additional consent terms dated 31st July, 2007. When this application was taken up for hearing, the respondent before the learned Judge of the Family Court and respondent before this Court was absent and that is how the learned Judge treated the matter as ex-parte. Since the matter : 2 : cwp-2728-11=.sxw pertained to modification of consent terms, it was necessary for all the parties to remain present before the Court. If the learned Judge would have taken up the proceedings ex-parte and passed an order in terms of the said application, probably the respondent would have made a grievance. It appears that in view of the absence of the respondent, learned Judge treated the hearing as ex-parte and thereafter proceeded to apply her mind to the said application and rejected the said application. 3. Before this Court, learned Counsel appearing for the respondent stated that due to personal reasons the respondent could not remain present before the Court and in principle he has no objection if the application filed on 31st July, 2008 in Petition No. E-118 of 2007 is decided on merits. 4. Now that the respondent has no objection for deciding the main application of August, 2008 on merits, order dated 29th June 2010 passed by the learned Judge of the Family Court can be set aside and the matter can be remanded to the Family Court for decision on merits. 5. For the reasons mentioned aforesaid, following order is passed to dispose of the writ petition. : 3 : cwp-2728-11=.sxw ORDER (i) Order dated 29th June, 2010 passed by learned Judge of the Family Court No.5, Mumbai in Application dated 31st July, 2008 is set aside. The said application is restored to the file of the learned Judge of the Family Court No.5. (ii) Learned Judge of the Family Court No.5 shall hear and dispose of the said application as expeditiously as possible. There shall be no order as to costs. (R.Y.GANOO, J.)