FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 10067 OF 2004 IN FIRST APPEAL NO. 292 OF 2002 ________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | ________________________________________________________ This application is taken out for condonation of delay in filing civil application as also for recalling or order dated 10.6.2002, dismissing in default the first appeal No. 292 of 2002. Civil application came up for orders before this Court on 5.6.2008, when the Court issued Rule making it returnable on 30.7.2008. This civil application was listed for orders on 26.6.2008, when the Court passed a conditional order granting eight weeks time to pay Bhatta charges. The respondent Nos. 1 and 4 were served. Notices of respondent Nos. 2 and 3 could not be served for want of complete and correct address. The matter was thereafter listed for orders before this Court on 20.4.2009, when the court passed conditional order for taking steps within six weeks. If the steps were not taken for effecting service, the appeal was to stand dismissed as against the concerned respondents i.e. respondents 2 and 3 herein. Unaware of the conditional order dated 20.4.2009, the applicant took out civil application No. 6424 of 2009 seeking permission to serve respondent No. 2 and 3 through paper publication in Gujarat Samachar under Order V Rule 20 of C.P.C. Civil application No. 9418 of 2009 is taken out for setting aside conditional order dated 20.4.2009 in civil application No. 10067 of 2004 and for restoration of first appeal. Heard Shri Suresh Mundhe, learned counsel appearing for respondent-Municipal Corporation and Shri. Usmanpurkar, learned counsel for respondent No.4. Learned counsel for the respondents strongly opposed the restoration of this application on the ground that the applicant is not diligent in prosecuting the appeal. It did not take steps promptly for effecting service on respondent Nos. 2 and 3. I have heard learned counsel for the parties. It is noted that first appeal No. 292 of 2002 came up for admission before this Court on 10.6.2002 when nobody appeared for the appellant and the matter was dismissed in default. At that time, respondents were neither served nor they appeared. Civil Application No. 10067 of 2004 was taken out for condonation of delay in filing application as also for setting aside the order dated 10.6.2002. At that time, the court issued Rule on 5.6.2008. In my opinion, there was no necessity of issuing Rule on civil application, as neither the respondents were served nor they appeared. The appeal was dismissed in default in absence of the respondents. This resulted in the applicant taking out civil application No. 6424 of 2009 for paper publication and civil application No.9218 of 2009 for setting aside conditional order dated 20.4.2009 passed in civil application No. 10067 of 2004 and for restoration of first appeal. After hearing learned counsel for the applicant, I am satisfied that the applicant has made out sufficient cause for condoning the delay as also for recalling the order dated 10.6.2002. In view of this, civil application No. 10067 of 2004 is allowed in terms of prayer clause “B” and “C” with no order as to costs. In view of this, first appeal No. 292 of 2002 stands restored to file. In view of restoration of first appeal No. 292 of 2002, no orders are required in civil application No. 6424 of 2009 and civil application No. 9418 of 2009, as they do not survive and are disposed of accordingly. List the appeal for admission after vacation. (R.G. KETKAR, J.) Date:15.12.2009. rlj/