gst 1 caa1634.08.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL APPLICATION NO. 1634 OF 2008 IN CIVIL APPLICATION NO. 64 OF 2008 IN APPEAL FROM ORDER NO. 700 OF 2007. Suryakant V. Joglekar & Ors. ... ..... ... Applicants. V/s Devendra Y. Manchekar ... .... ..Respondent. Ms.S.Srikrishna i/by M/s.S.Kothari & Co., Adv. For the applicants. Ms.Anulata Saundankar i/by Ms.Gauri Godse, Adv. For the respondent. CORAM: B.R. GAVAI, J. 25th Jan., 2011 PC: This civil application is for condoning the non appearance of the applicants and for restoration of Appeal from Order No.700/07 and Civil Application No.988/07. Ms.Srikrishna, learned advocate appearing on behalf of the applicant submits that on earlier occasion when the appeal came to be dismissed an application for restoration came to be dismissed when the counsel for the applicant could not remain present since on one occasion he was indisposed and on the other occasion his mother was indisposed. It is therefore submitted that the application be allowed. 2. Ms.Saundankar, learnred counsel appearing on behalf of the respondent on the contrary submits that conduct of the appellant has been thoroughly callous and as such the applicants are not entitled to any indulgence by this Court. 3. Undoubtedly, the applicants have not been diligent enough to prosecute the present proceedings. Not only the appeal was dismissed but the application gst 2 caa1634.08.sxw for restoration is also dismissed. 4. However taking into consideration, in the interest of justice, I find that instead of foreclosing the doors on technical grounds parties should be permitted to get dispute decided on merits. In that view of the matter application is allowed. Appeal is restored to file. 5. Appeal is taken up for admission. The appeal challenges the order dated 1.6.2007 vide which the application filed by the present appellant-plaintiff for temporary injunction came to be rejected. The learned counsel for the appellant submits that learned trial Judge has grossly erred in ignoring the various material documents while rejecting the application. It is submitted that the application ought to have been allowed by the trial Court. 6. Learned counsel for the respondent on the contrary submits that the appeal itself is rendered infructuous in as much as the prayer which was sought in the injunction application no more survives. 7. Perusal of the application filed by the present appellant would reveal that main prayer is for injunction restraining the defendant-respondent from constructing the compound wall. Learned counsel for the respondent submits that as a matter of fact the learned trial Judge has observed that even prior to application for temporary injunction the compound wall was already constructed. 8. A period of three years and seven months has elapsed from the date on which the application for temporary injunction came to be rejected. I find that it will not be in the interest of justice to consider the application after such a long period. In that view of the matter appeal stands dismissed. In view of disposal of appeal civil application does not survive and the same also stands disposed of. Hearing of the suit is expedited.