:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8327 OF 2006 Naresh K.Nandwani .. Petitioner. Vs. Vasundhara Co-op. Housing Society Ltd. & Ors. .. Respondents. Mr.Jayesh Bhatt for the petitioner. Mr.Dinesh Kumar Jain i/b M/s. L.J.Law for respondent no.3. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 15TH FEBRUARY, 2008. DATED : 15TH FEBRUARY, 2008. DATED : 15TH FEBRUARY, 2008. P.C.: P.C.: P.C.: . Heard learned counsel for the petitioner and respondent no.3. None for the other resopndents though served by substituted service. It appears that even before the trial Court these respondents did not appear, though served. 3. Rule, returnable forthwith. Mr.Jain, learned counsel waives service for respondent no.3. By consent taken up for final hearing. 4. This writ petition is directed against an order dated 5th October, 2006 by which the Co-operative Appellate Court has dismissed the appeal for want of proper service. It appears that despite several opportunities the petitioner could not serve :2: :2: :2: all other respondents in appeal. Taking totality of the circumstances into account, it is clear that by not effecting service to other respondents, the petitioner did not stand to benefit. It cannot be presumed that the act of the petitioner, though clearly show lethargy, was deliberate. He cannot be non suited for the default on his part to serve the other respondent promptly. Considering the nature of dispute and the claim of the petitioner in the property I am inclined to give him one more opportunity. Hence I pass the following order: . The impugned order dated 5th October, 2006 is set aside. Appeal No.117 of 2006 pending before the Co-operative Appellate Court is restored to file. The appellate court shall given an opportunity to the petitioner to serve the respondents afresh. It is also open for the petitioners to apply before the appellate court seeking permission for substituted service. If such an application is filed the appellate court shall consider it in accordance with law. The writ petition is disposed of with costs of Rs.1,000/- to be paid to respondent no.3 within a period of four weeks from today. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.)