1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.1 OF 2009 IN APPEAL FROM ORDER NO.287 OF 2001 IN NOTICE OF MOTION NO.6317 OF 2000 AND CHAMBER SUMMONS NO.1528 OF 2000 IN SHORT CAUSE SUIT NO.3111 OF 1998 Radheshyam Badriprasad Gupta ..... Petitioner (Ori. respondent no.1) vs. Shri Ramashankar Jamunaprasad ..... Respondent & ors. (Ori.appellant) Mr.Y.R.Dube,Advocate for petitioner Mr.K.N. Kore,Advocate for respondent no.1 Respondent no.1 absent despite service by publication. Coram : Smt. R.P.SondurBaldota, J. Date : 12thJune 2009 PC :- 1. The review applicant herein is respondent no.1 to the Appeal from Order No.287 of 2001. He seeks review of the order dated 11th September 2008, by which the Appeal from Order was partly allowed and the order passed by the trial Court on Chamber Summons No.1528 of 2000 was set aside. 2. The Appeal from Order as filed seeks to challenge two orders of the trial Court, the order on Notice of Motion No.6317 of 2000 and the order on Chamber Summons No.1528 of 2000. By the order under review, this Court had found no infirmity in the order on the Notice of Motion and was inclined not to disturb the same. At paragraph 6 of the order, it is specifically 2 observed that as regards the order on the Notice of Motion, on prima facie view of the matter no fault can be found with it. This Court had, however, thereafter considered the order on the Chamber Summons and for the reasons stated therein set the same aside. 3. Mr. Dube,the learned counsel for the review applicant-original respondent no.1 submits that there is an error apparent on the face of the record as regards the order under review because the challenge to the order on the Chamber Summons was no more a part of Appeal from Order No.287 of 2001. He draws my attention to the order dated 23rd January 2004 passed by this Court. The said order observes that a common appeal to challenge the order on the Notice of Motion and Chamber Summons was filed because the appellant was under genuine impression that a common order had been passed in the two applications. However, certified copy of the impugned order revealed that there were separate orders passed on the Chamber Summons and Notice of Motion though on the same day. It was further observed that the Appeal from Order against the order passed under Order 6, Rule 17 Code of Civil Procedure is not maintainable. Therefore, the challenge to the order on the Chamber Summons could not be part of the Appeal from Order No.287 of 2001. The appellant was therefore granted leave to amend and file memo of Civil Revision Application to challenge the order on the Chamber Summons. The appellant accepted this order and filed Civil Revision Application No. 41 of 2004, thereby separating the challenge to the order on the Chamber Summons from the present appeal. That civil revision application came up for hearing on 11th August 2005, when the appellant withdrew the same as the 3 Court was of the opinion that in view of amended provisions of Section 115 of Code of Civil Procedure, the revision application was not tenable. The appellant, however was granted liberty to file such application as available in law. 4. It is most unfortunate that when the present Appeal from Order reached for hearing before me, the learned counsel for the appellant did not point out the two orders dated 23rd January 2004 and 11th August 2005 to me. Consequently the order under review came to be passed. This conduct on the part of the learned counsel was highly inappropriate. Mr. Kore, learned counsel for the appellant now makes a feeble attempt to explain his conduct by saying that he was not aware of the two orders. I find no substance in the explanation because perusal of the two orders shows that Mr.Kore had himself appeared in the matter on the relevant dates. He, therefore, cannot feign ignorance of the orders. Since the challenge to the Chamber Summons was given up from the present appeal proceedings, there is an error apparent on the face of record and the order under review cannot be sustained to that extent. 5. Mr. Kore submits that the present Review Petition is not maintainable as the respondent had not appeared before the Court on the date on which the order under review was passed and it is necessary for the respondent no.1 to file appropriate application for the same. I do not find any difficulty as regards maintainability of the review application because there is an obvious error apparent on the face of the record. The order 4 under review however will remain unchanged to the extent of the challenge to the order on Notice of Motion. Hence, the order. O R D E R 1. The Review Petition is partly allowed. 2. The order under review as regards the challenge to the order on Chamber Summons No.1528 of 2000 is set aside. 3. There is no change to the order as regards the challenge to order on Notice of Motion No.6317 of 2000. 4. The original appellant, respondent no.1 to the present Review Petition to pay costs quantified at Rs.3,000/- to the original respondent no.1, the review applicant herein. (Smt.R.P. SondurBaldota,J.)