1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 16. Civ.R.A./128/2009 ( ABDUL LATIF ABDUL GANI HAKIM AND OTHERS V/S HAJI SHAIKH MOHD. ILYAS A.GAFOOR AND OTHERS) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. G.D.Shaikh, Adv., for petitioner. Shri A.P.Bhandari, Adv., h/f Shri S.V.Gangapurwala, Adv. for respondent nos. 1 to 4. Mr. S.A.G.Qureshi, Adv., h/f Mr.M.B.W.Khan, Adv., for respondent no.6. ... CORAM: K.U.CHANDIWAL, J. DATE:25/1/2010 P.C.:- 1. Heard. 2. Wakf Suit No.70/2008 was pending before the learned Presiding Officer on 17.8.2009. It was a time bound matter, to be disposed of upto 31st Oct.,2009, by virtue of orders of this Court. 3. On 17.8.2009, when the matter was called, the learned Presiding 2 Officer noticed that no affidavit in terms of Order 18 Rule 4 of C.P.C. is tendered though the plaintiff and Advocate remained present. Curiously, no adjournment application was moved as is recorded by the learned Judge. Consequently, the learned Presiding Officer observed, owing to the Counsel of defendants submitting, suit being time bound, and hence he dismissed the same. 4. The matter was called at 3.15 p.m. same day, as the Counsel for the plaintiff appeared, however, at the material time, the record indicates, the Counsel for defendant nos. 2 to 11 were absent. The learned Presiding Officer set aside the order which was indeed in terms of Order 9 Rule 8 of C.P.C. passed in the morning session. The grievance of the defendant/petitioner herein is, such order of the learned Judge is contrary to the mandate in terms of Order 9 Rule 2 of C.P.C. which ordains, no order shall be made under this Rule 3 unless notice of the application has been served on the opposite party. It is clear, the learned Presiding Officer having been influenced that the matter is time bound and that restoration application was moved on the very day, restored the same without adhering to hearing the defendant/applicant herein. Since there is non compliance of mandatory provision of Order 9 Rule 2 C.P.C., the order of restoration will have to be quashed and, it is, accordingly, quashed. 5. The learned Presiding Officer shall hear the parties on the application for restoration ( Exh. 129) and pass appropriate orders. Such exercise to be done within a week. The parties to appear before the learned Presiding Officer on 29th Jan.,2010. The defendant in the proceeding shall not create third party interest till the restoration petition is decided by 4 the learned Presiding Officer. Civil Revision Application is allowed to the extent as above. (K.U.CHANDIWAL) JUDGE ... agp/128-09cra