42-wp-1135-10.doc jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1135 OF 2010 Shri. Tulsidas Thakurdas Amesur ..Petitioner Vs. Satnam Co.Op. Housing Society Ltd. and Anr. ..Respondents Ms. Leena Patil i/b M.S.Karnik for petitioner Ms. Aparna Vhatkar AGP for State CORAM : A.S. OKA, J. DATE : 12th JULY, 2011. P.C.: 1. Heard the learned Counsel appearing for the petitioner. None appears for the 1st respondent. On 31st August 2010 this Court has issued notice for final disposal. 2. On the Application made by the 1st respondent, a Recovery Certificate under Section 101 of the Maharashtra Co- Operative Societies Act, 1960 (hereinafter referred to as the “said Act”) was issued against the applicant. Revision Application under Section 154 of the said Act was preferred by the petitioner. The Recovery Certificate was issued in the sum of Rs. 64,490.50. An amount equivalent to 50% of the total recoverable dues under the Recovery Certificate 1 42-wp-1135-10.doc has been deposited by the applicant. The Revision Application was dismissed by the impugned judgment and order. 3. The submission of the learned Counsel appearing for the petitioner is that the petitioner was not heard in the Revision Application. The learned Counsel appearing for the petitioner invited attention of the Court to what is stated in paragraph 4 of the petition and in the additional affidavit dated 29th November 2010. Learned Counsel submitted that in view of what is stated in paragraph 4 of the petition and additional affidavit, the impugned order be set aside and the Revision Application be ordered to be heard afresh on merits. 4. I have considered the submission. In paragraph 4 of the petition, the petitioner has stated thus: “The petitioner states that the petitioner was regularly present at the time of the proceedings before the respondent no.2 during the proceedings of the Revision Application No. R-100 of 2007. The petitioner states that on 26th November 2009 the petitioner could not appear before the Learned Respondent no.2 on time when the matter was called out in the second sitting as on the said date the cousin of the petitioner 2 42-wp-1135-10.doc was seriously ill. The petitioner, however, already requested the Court to adjourn the matter in the first sitting itself. The request of the petitioner was granted and the concerned Clerk of the Court was directed to give the petitioner the next date. The concerned clerk gave the petitioner date of 4th January, 2010. The petitioner believed that the concerned Clerk has also made proper entry in the daily Kharda in respect of the same.” 5. In the reply filed by the 1st respondent, it is stated that the Roznama of the proceedings of the Revision Application shows that the petitioner was absent on 26th October 2009. In the additional affidavit of the petitioner and particularly in paragraph no.1, the petitioner has reiterated that on 26th October 2009, the petitioner was present before the 2nd respondent in the first sitting and that a request for adjournment made by the petitioner was acceded to by fixing 4th January 2010 as the next date. In paragraph 2 of the additional affidavit, the petitioner has stated thus: “The petitioner states that the petitioner was present on 26th October 2010 in the first sitting of the Court. And the same fact is also specifically mentioned in the 3 42-wp-1135-10.doc memo of the above referred Writ Petition. However, in the paragraph 4 of the petition, it was wrongly typed as 26th November 2009 instead of 26th October 2009. The petitioner, therefore, deeply apologizes for the trouble caused to this Hon'ble Court in that respect. The petitioner further submits that in Ground C on page 9 of the petition, it is specifically mentioned that the petitioner had already requested to the Court that the cousin of the petitioner was seriously ill and therefore he has requested for an adjournment in the first sitting itself.” 6. The Revision Application was decided prior to 4th January 2010 by passing impugned order on 23rd December 2009. There is no dispute that when the Revision Application was heard, the petitioner was absent. Looking to the averments made in the petition and additional affidavit, this is a fit case where an opportunity deserves to be granted to the petitioner to prosecute the Revision Application. 50% of the recoverable amount has already been deposited. The 1st respondent can be compensated by ordering in payment of costs. 7. The amount of costs is quantified at Rs.5,000/-. 8. Hence, I pass the following order: 4 42-wp-1135-10.doc (1) Impugned order dated 23rd December 2009 is quashed and set aside and Revision Application No. R-100 of 2007 is restored to the file of Divisional Joint Registrar. (2) The petitioner shall pay costs quantified at Rs.5000/- to the 1st respondent within a period of six weeks from today. Payment of costs will be a condition precedent. (3) Revision Application shall be decided afresh on its own merits as expeditiously as possible. (4) Rule is partly made absolute on above terms. [ A.S. OKA, J ] 5