IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.436 OF 2008 NO.436 OF 2008 NO.436 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.58 OF 2008 OF MOTION NO.58 OF 2008 OF MOTION NO.58 OF 2008 IN IN IN WRIT WRIT WRIT PETITION NO.1497 OF 2005 PETITION NO.1497 OF 2005 PETITION NO.1497 OF 2005 IN IN IN REF. REF. REF. NO.(IDA) NO.538 OF 1998 NO.(IDA) NO.538 OF 1998 NO.(IDA) NO.538 OF 1998 M/s. Milestone (Frankie S. Tall) ..Appellant V/s. Mathew D’Souza and Anr. ..Respondents ....... Mr. A.V. Chatuphale for Appellant Ms. B.P. Jakhade for Respondents ....... CORAM CORAM CORAM : SMT RANJANA DESAI & : SMT RANJANA DESAI & : SMT RANJANA DESAI & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE :21ST NOVEMBER, 2008 :21ST NOVEMBER, 2008 :21ST NOVEMBER, 2008 P.C.: 1. On 2nd April, 2007, learned Single Judge of this Court dismissed Writ Petition No.1497 of 2005 filed by the appellant observing that on the last four dates neither the appellant nor his counsel was present. The petition was dismissed for want of prosecution. Interim relief, if any, was vacated. Notice of Motion No.59 of 2008 was taken out by the appellant-original petitioner for restoration of the said writ petition. By the impugned order, learned Single Judge has saddled the : 2 : appellant with costs quantified at Rs.25,000/-. Learned Single Judge has restored the petition on the condition that the said costs are paid within two weeks from the date of order. This order is challenged in this appeal. 2. We have heard learned Counsel for the appellant. Learned Counsel submitted that the impugned order is very harsh. He submitted that the appellant’s advocate’s clerk was new. The advocate heavily relied on the clerk. Due to oversight and the clerk being new, the appellant’s advocate did not notice the matter which was on the board. He, therefore, could not inform the appellant about it and hence it got dismissed. Learned counsel submitted that in the circumstances, the impugned order be set aside and at any rate, the costs may be reduced. Learned Counsel for the 1st respondent has opposed this prayer. 3. By order dated 4th July, 2005, learned Single Judge had granted interim relief in terms of prayer clause (b). Thus directions issued by the Labour Court to reinstate respondent No.1 with continuity of service and full back wages w.e.f.10th April, 1996 was stayed. Because of the dismissal of the writ petition, the said interim relief was vacated. If the writ petition is : 3 : restored, the interim relief would start operating again. In the circumstances of the case, therefore, in our opinion, the appellant must be directed to deposit Rs.50,000/- in this Court towards payment of full backwages as directed by the Labour Court and office must be directed to invest the said amount in any nationalised bank on usual terms. The said amount will abide by the final decision in the writ petition. If respondent No.1 gives a bank guarantee to the satisfaction of the Prothonotary and Senior Master, High Court, Bombay, the said amount may be allowed to be withdrawn by respondent No.1. We are of the opinion that the amount of costs of Rs.25,000/- must be reduced to Rs.5,000/-, to be paid within 4 weeks from today either to respondent No.1 or respondent No.1’s Counsel. 4. Hence the following Order :- (a) The appellant is directed to deposit an amount of Rs.50,000/- in this Court within a period of six weeks from today. (b) If respondent No.1 gives bank guarantee to the satisfaction of Prothonotary and Senior Master, High Court, Bombay, the said amount may : 4 : be allowed to be withdrawn by respondent No.1 against the said bank guarantee. The bank guarantee may be given within eight weeks from today. (c) If the bank guarantee is not given as directed, the Prothonotary and Senior Master shall invest the said amount in any nationalised bank on usual terms. The said amount will be subject to the final decision in the writ petition and will abide by it. (d) The amount of costs is reduced to Rs.5,000/- from Rs.25,000/-. The costs be paid within four weeks from today either to the 1st respondent or to his counsel. (e) Upon fulfilment of the above conditions, the writ petition shall stand restored. The impugned order is substituted by this order. We make it clear that we have not considered the merits of the case. (f) The appeal is disposed of in the aforestated terms. : 5 : JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE