1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Civil Application No. 717 of 2009 IN Misc. Civil Application [Resto.] St. No. 12449 of 2009 IN Letters Patent Appeal No. 365 of 2007 IN Writ Petition No. 3950 of 2007 [decided] [Anil Pralhadrao Deshpande Vs. Reform Club Ltd.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. S.R. Deshpande, Adv., for the applicant. Mr. Abhay Sambre, Adv., for respondent. ----- CORAM : B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATE : 07th September, 2009. Heard. Prayer is to condone delay of one year and fifteen days in filing Misc. Civil Application St. No. 12449 of 2009. That Misc. Civil Application is for restoration of Letters Patent Appeal No. 365 of 2007, which came to be dismissed on 21st August, 2008. Adv. Mr. Deshpande states that initially Bhatta was paid and notice was made returnable. The matter was listed on 26th June, 2008 and that day, it was stated that notice was 2 not received back after service. Fresh Bhatta and correct address was not expressly required and there was no conditional order, still the matter ultimately came to be dismissed. He states that the dismissal came to knowledge of applicant on 7th August, 2009 when warrant of possession was taken out by present respondent. According to him, as there are no malafides, delay needs to be condoned and prayers made in Misc. Civil Application for restoration deserve to be granted. Adv. Mr. Sambre for respondent is strongly opposing the prayers. He sates that on 26th June, 2008, the matter was not attended and thereafter no steps were taken to find out whether service is effected or not. After eleven months, the fact came to knowledge of applicant, and that too when the respondent went to recover the possession. According to him, the facts clearly show negligence. After hearing both the learned counsel, we find that after 26th June, 2008, the matter went unattended. It also appears that there was no note requiring the applicant to pay fresh Bhatta or correct address and also there was no conditional order. In these circumstances, we do not find any malafides in the matter. Hence, delay is condoned, subject to payment of costs of Rs. 3 3,000-00 [rupees three thousand only] by applicant to respondent by 22nd September, 2009. If the costs are so paid, office to register Misc. Civil Application. If the Misc. Civil Application is registered, the prayers made therein shall be deemed to have been granted and in that event Letters Patent Appeal No. 365 of 2007 shall be restored. Adv. Shri Sambre in that event waives notice in Letters Patent Appeal after restoration. Interim order protecting the possession of applicant to continue till the costs are paid, and if the costs are paid, then till the Letters Patent Appeal is heard for its confirmation. Judge Judge |Hedau| 4