1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. REVIEW PETITION (L) NO. 11 OF 2009 IN NOTICE OF MOTION NO. 2494 OF 2008 IN APPEAL (L) NO. 339 OF 2008 IN CHAMBER SUMMONS NO. 395 OF 2004 & 1195 OF 2004 IN EXECUTION APPLICATION NO. 267 OF 2003 IN SUMMONS FOR JUDGMENT NO. 1266 OF 2001 IN SUMMARY SUIT NO. 1089 OF 1999 Dr. Pankaj C. Gandhi .. Petitioner Vs Rohit M. Sanghvi & Another .. Respondents Petitioner in Person Respondent in Person CORAM : B.H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. DATE : 24th February, 2010 P.C.: 1. The Petitioner undertakes to remove the office objection at Sr No. 9. 2. Other office objections waived off. 3. The Petition be numbered. 10.rpl11-09 2 4. We have heard the Petitioner as well as Respondent No. 1 as parties in person. It appears that Respondent No. 2 has not been served and in any case, no relief is sought against her in this Review Petition. 5. The Petitioner prays for recall of the order dated 06.02.2009. In Notice of Motion No. 2494 of 2008, an order was passed on 13.10.2008 restoring the Appeal under lodging No. 339 of 2008 but subject to payment of costs of Rs. 2000/- and to be paid to the mediation centre. The parties were also referred to the mediation and were directed to appear before the mediation centre in the premises of this Court. It was further directed that the costs shall be condition precedent for mediation proceedings. On 18.11.2008, yet another order came to be passed in Notice of Motion No. 2494 of 2008 and by the said order, all matters were referred to the mediation and the praecipe was disposed off accordingly. 6. It appears that Respondent No. 1 took out a praecipe for speaking to the minutes of the order dated 18.10.2008. The praecipe was served on the present Petitioner who is the original Respondent No. 1 in the Appeal as well as on the Respondent No. 2. Both the Respondents filed reply to the said praecipe on or about 10.rpl11-09 3 07.01.2009. 7. However, the praecipe was not listed and therefore, on 19.01.2009, Respondent No. 1 – original Appellant addressed a letter to the Prothonotary and Senior Master of this Court requesting to place on board his praecipe for speaking to Minutes. It appears that Respondent No. 1 appeared before the Court and mentioned the praecipe. The Division Bench, therefore, passed an order directing to take the praecipe on board and it was to be listed on 29.01.2009. On 29.01.2009, the praecipe was not listed before the Division Bench and therefore, Respondent No. 1 took out fresh praecipe on the same day before the Court and it appears to have been given next date as 06.02.2009. It is, under these circumstances that the praecipe filed by Respondent No. 1 in Notice of Motion No. 2494 of 2008 was heard and decided on 06.02.2009 and the said order is prayed to be recalled in this Review Petition. 8. It is submitted by Dr. Gandhi – Petitioner in Person that he was not present on 06.02.2009 before this Court and he was not aware that the praecipe was to be listed for hearing on 06.02.2009 whereas Mr. Rohit Sanghvi – Respondent No. 1 submitted that Dr. Gandhi and his wife had filed affidavits in reply to the praecipe and they 10.rpl11-09 4 ought to have kept track of the next date so as to appear before this Court. He alleged that Dr. Gandhi deliberately remained absent and therefore, there is no case made out to recall the order dated 06.02.2009 on the ground that it was passed in the absence of Dr. Gandhi. 9. We have verified the record and it is clear that on 19.01.2009 as well as on 29.01.2009, Dr. Gandhi had no notice when two praecipes were moved by Shri. Rohit Sanghvi and Dr. Gandhi was also not aware that the praecipes filed by Rohit Sanghvi for speaking to minutes would be listed before the Court on 06.02.2009. In the order dated 06.02.2009, there is no reference to the affidavits in reply filed by Dr. Gandhi as well as his wife on or about 07.01.2009. When the parties appear in person, it is imperative that they are put on notice of the dates on which the lis will be listed and it is the responsibility of the registry to ensure that such parties be noticed. In the instant case, we are satisfied that Dr. Gandhi had no notice of the praecipe for speaking to the minutes to be listed on 06.02.2009 and therefore, he could not remain present. We are not impressed by the submissions of Mr. Rohit Sanghvi that Dr. Gandhi chose to remain absent. In our 10.rpl11-09 5 opinion, interest of justice would be better served if the order dated 06.02.2009 is recalled and the praecipe filed by Mr. Sanghvi for speaking to the minutes is heard and decided afresh. 10.Hence, the Review Petition is partly allowed. The order dated 06.02.2009 is hereby recalled. 11.The praecipe for speaking to the minutes filed by Mr. Sanghvi is hereby restored to file and it is directed to be listed for hearing on 10th March, 2010. 12.Issue fresh notice to Respondent No. 2 returnable on 10th March, 2010. 13.We make it clear that in case, Hon’ble Shri. Justice Bobade resumes his sitting at Mumbai by the next date, the praecipe for speaking to the minutes shall be listed before the Division Bench of which His Lordship would be a member. 14.We also make it clear that this order would not prevent the Petitioner from taking out an appropriate fresh proceedings for contempt against Shri. Rohit Sanghvi or any other parties. [SMT. V.K. TAHILRAMANI, J.] [B.H. MARLAPALLE, J.] 10.rpl11-09 6 10.rpl11-09