1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.280/2008 IN CIVIL REVISION APPLN.NO.306/2008 Bhalchandra Sadashiv Kavadi Applicant Vs. Dinkar Shridhar Tamhankar Respondent Mr.S.R.Borulkar advocate for the applicant Mr.G.S.Godbole advocate for the respondent CORAM: S.J.VAZIFDAR,J. DATE : 10th December,2008 P.C. 1] By this Civil Application the petitioner seeks a review of the judgment and order dated 5/6/2008 in Civil Revision Application no.306/2008 by seeking an extension of time for exercising the option for taking possession of the alternate accommodation. 2] By the said order and judgment dated 5/6/2008 I confirmed the order of the lower appellate Court confirming the judgment of the trial Court by which the suit for eviction was decreed. The lower appellate Court,however,granted the 2 petitioner liberty to exercise the option of taking possession of the alternate premises belonging to the respondent/plaintiff and his daughter within a period of 10 weeks from the date of the judgment.The judgment is dated 11.2.2008. It was further ordered that upon the option being so exercised the petitioner would be put in possession of the said flat on leave and license basis till the life time of the petitioner and his wife and on the further condition that the petitioner would not be burdened by more than the prevailing amount of rent but exclusive of taxes and other charges. In case the petitioner failed to exercise the option within the above period the same was to stand terminated automatically. 3] When the Civil Revision Application was disposed of by the order dated 5/6/2008 the petitioner omitted to seek an extension of time for exercising the option. The time for exercising the option expired on 20/4/2008. Thereafter the respondent entered into a leave and license agreement with another party dated 31/7/2008 which is due to expire on 31/8/2009. The respondent cannot be faulted for the same. 4] Despite the same I am inclined to grant the relief as the omission to seek extension of time to exercise the option 3 appears to be inadvertent. Added to this is the fact that the relief I intend granting till not prejudice the respondent in any manner. 5] The respondent has not challenged the order granting the option in favour of the petitioner with respect to the alternate accommodation. Thus,upon the expiry of leave and license agreement in respect of the alternate accommodation dated 31/7/2009 the petitioner is permitted in exercise of the option to occupy the same on the terms and conditions stipulated therein. The respondent would suffer no prejudice as that is something he had agreed to in any event . To hold otherwise would entitle the respondent to an advantage only in view of the petitioner's inadvertence. 6] It was contended that this application is not maintainable as there is no error apparent on the face of the order. 7] As stated above the error was inadvertent. In the circumstances I see no bar to the Court exercising the powers even under section 151 of the Code of Civil Procedure to ensure that there is no miscarriage of justice. 8] It was further submitted that the application for extension of time ought to be made before the District Court . 4 9] I do not agree. The error was committed in this Court . The same application could have been made in this Court while disposing of the Civil Revision Application. The application is therefore maintainable . 10] Lastly it was submitted that there is nothing to indicate that this was an error.I do not agree . Even if the petitioner desired to challenge the order dated 5/6/2008 the application for extension of period could also have been made without prejudice to the rights of the petitioner to challenge the order . 11] Further the petitioner has agreed unconditionally to pay a sum of Rs.2,500/- on or before the 10th day of each month commencing from the month in which he is put in possession of the alternate premises inclusive of all the taxes and other charges as on date as a condition of the leave and license being created in his favour as per the impugned order. He also offers to pay any increase in the taxes or other charges hereafter . The petitioner has also agreed to pay the expenses of the registration of the leave and license agreement and shall execute all the documents necessary for the purpose of registration of the same.This itself is to the respondent's 5 enormous advantage. 12] The petitioner shall be entitled to continue in possession of the suit premises till he is put in possession of the alternate premises subject to his paying on or before the 10th day of each month commencing from 10/1/2009 a sum of Rs.3,000/- per month inclusive of outgoings and taxes. 13] Liberty to the petitioner to apply in case of difficulty including on account of the alternate premises not being available for any reason. 14] The Civil Application is accordingly disposed of.