1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3769 OF 2008 (Dhanyekumar Shantinath Mohikar vs. Vidarbha Irrigation Development Corporation & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. OCTOBER 14, 2008. Heard Shri Kothale, learned counsel for the petitioner and Shri Patil, learned counsel for the respondents. The challenge is to the order dated 02.04.2008 by which the Ad-hoc District Judge -5, Amravati, has refused to condone delay in an application filed under Order 41, Rule 21 of Civil Procedure Code, for rehearing of appeal during Regular Civil Appeal No. 360 of 2000. The said Court has found that the reason of non service of summons pressed into service by the petitioner, was not substantiated. Shri Kothale, learned counsel argues that as per provisions of Order 5, Rule 12 of CPC, the summons ought to have been served on the petitioner in person and as his son Abhishek was not appointed by him as his representative, the service upon Abhishek could not have been treated as valid 2 in the impugned order. Shri Patil, learned counsel, on the other hand, contends that service has been treated as valid because of provisions of Order 5, Rule 15 of CPC. The trial Court has passed a decree in favour of present petitioner and it has been reversed by the lower appellate Court while allowing the appeal filed by the respondent. The appeal was initially before this Court but on account of change in pecuniary jurisdiction, it was transferred to District Judge. It is the contention of the petitioner that after transfer of the matter, he did not receive the date schedule for appearance/ hearing. The records demonstrate that as per bailiff report Exh. 33, the date of hearing/ appearance was communicated to Abhishek – son of the petitioner, still the petitioner did not remain present. In the circumstances, though there is nothing wrong with the service to Abhishek, still in order to give an opportunity to the present petitioner to argue the appeal on merits and subject to the petitioner paying cost of Rs.10,000/- to present respondents by 17.11.2008, the impugned order is quashed and set aside. The learned counsel for the petitioner has stated that amount of Rs.10,000/- shall be deposited 3 before the lower appellate Court by 17.11.2008. The present respondents No. 1 & 2 shall be at liberty to withdraw it. Accordingly, the impugned order dated 02.04.2008 is quashed and set aside. Misc. Civil Application No. 204 of 2004 moved by the petitioner is allowed and his request for rehearing of appeal Regular Civil Appeal No. 360 of 2000 is granted. If the costs are so paid, the Court below shall proceed to rehear the appeal and decide it afresh as early as possible and in any case by 30th June 2009. Writ Petition is disposed of. Rule accordingly. No order as to costs. JUDGE *GS.