: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL APPLICATION NO.1301 OF 2004 CIVIL APPLICATION NO.1301 OF 2004 CIVIL APPLICATION NO.1301 OF 2004 IN IN IN APPEAL FROM ORDER NO.844 OF 2002 APPEAL FROM ORDER NO.844 OF 2002 APPEAL FROM ORDER NO.844 OF 2002 IN IN IN NOTICE OF MOTION NO.39 OF 2002 NOTICE OF MOTION NO.39 OF 2002 NOTICE OF MOTION NO.39 OF 2002 IN IN IN S.C.SUIT NO.5038 OF 2001 S.C.SUIT NO.5038 OF 2001 S.C.SUIT NO.5038 OF 2001 Bhupendra Maganlal Shah ).. Appellant Versus Bharat s/o Kevalchand Solanki ).. Respondent Mr.S.P.Dubey for the Appellant. Mr.A.Y.Sakhare with Mr.S.K.Dubey for the Respondent/Applicant. CORAM: SMT.NISHITA MHATRE, J. CORAM: SMT.NISHITA MHATRE, J. CORAM: SMT.NISHITA MHATRE, J. DATED: 25TH JANUARY 2005 DATED: 25TH JANUARY 2005 DATED: 25TH JANUARY 2005 P.C.: P.C.: P.C.: . This Civil Application has been filed by the Respondent mainly for recalling the order dated 5th October 2004 by which the Appeal From Order has been decided. The explanation given is that the Clerk of the Advocate missed the matter and, therefore, the Respondent could not remain present. Without going into the merits of the Civil Application, which details the incidents which occurred after my order, I am of the view that negligence of a Clerk of the Advocate should not jeopardise the interest of the Respondent. However, : 2 : since the matter appeared on two dates in October 2004, the order dated 5th October 2004 is recalled on condition of payment of costs quantified at Rs.5000/- (Rupees Five Thousand only). The costs shall be paid within one week to the Advocate for the Appellant. 2. After my order dated 5th October 2004, the Appellant is now in possession of the suit premises and, therefore, will remain in possession till the Appeal From Order is decided afresh. 3. Civil Application disposed of accordingly.