1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLICATION NO. 28 OF 2009 IN MISCELLANEOUS CIVIL APPLICATION (RESTO) (ST) NO. 19045 OF 2008 IN WRIT PETITION NO. 828 OF 1997 (Mohanlal Chandulal Agrawal .v. Additional Collector and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri S.C. Mehadia, Advocate for the applicant. Shri N.S. Khubalkar, AGP for the respondent Nos.1 and 2. Shri B.N. Mohta, Advocate for the respondent No.3(b). CORAM : SMT. VASANTI A. NAIK, J. 16TH FEBRUARY, 2009. Heard the learned Counsel for the parties. By this Civil Application, the applicant seeks condonation of delay in filing the application for restoration of writ petition. It is stated in the application that a common order had been challenged in Writ Petition Nos.827 of 1997; 829 of 1997; 830 of 1997; 831 of 1997; 832 of 1997; 833 of 1997; and 834 of 1997 and the said petitions were listed before the Court for final hearing. It is further stated in the application that when these matters were listed before the Court for final hearing, the learned Counsel for the petitioner got the knowledge about the dismissal of Writ Petition No. 828 2 of 1997 in default on 08.05.2004 on perusal of the return filed by the respondent No.3. The learned Counsel for the petitioner then made the necessary enquiries from the office and became aware that the writ petition was dismissed for non removal of office objection. It is further stated in the application that there were eight petitions filed against the common order and inadvertently the learned Counsel for the petitioner had lost sight of the present petition and hence it was dismissed in default by an order dated 08.05.2004. It is submitted on behalf of the applicant that the applicant has an excellent case on merit and irreparable loss would be caused to the applicant in case the application for condonation of delay in filing the restoration application is not allowed. On the other hand, it is submitted on behalf of the respondent No.3(b) that the application filed by the applicant is liable to be dismissed as it is not supported by an affidavit. It is further stated on behalf of the respondent No.3(b) that the writ petitions were listed for final hearing before the Court since 2006 with the note that the present petition was already dismissed and in spite of this, the Advocate had not moved any application for restoration of writ petition. The learned Counsel for the respondent No.3(b) then states that in 3 the return filed by the respondent No.3(b) in the other petitions, it was categorically mentioned that Writ Petition No. 828 of 1997 was dismissed in default and yet the application was not moved by the applicant till December, 2008. The learned Counsel for the respondent No.3(b), therefore, sought for the dismissal of the application. I have considered the submissions made on behalf of the parties. It appears that the return was filed in the other writ petitions by the respondent No.3(b) on 08.01.2007. It is submitted on behalf of the applicant that though the return was filed by the respondent No.3 in January, 2007, normally a return is perused in its entirety if the matter is taken up for final hearing and, therefore, for the first time the learned Counsel for the applicant noticed on perusal of the return while preparing the matter for final hearing that Writ Petition No. 828 of 1997 was dismissed in default. The application cannot be rejected on the ground that it is not supported by an affidavit as the statements of facts made in the Civil Application were within the personal knowledge of the Counsel for the petitioner and not the petitioner himself and a note has been appended to the application seeking the dispensing of the filing of the affidavit by the Counsel for the petitioner as the facts 4 stated in the application were within the knowledge of the Counsel for the petitioner. It appears from the perusal of para 2 of the Civil Application that the reason for the delay was known to the Counsel for the petitioner and hence the said note of dispensing of the filing of the affidavit followed the application dated 01.12.2008. Even otherwise, it is necessary to consider that the petitioner had filed eight petitions challenging the common order and, therefore, it is quite probable that the Counsel for the petitioner inadvertently lost sight of the fact that one of the petitions was dismissed in default by an order dated 08.05.2004. In the result, specially in the facts and circumstances of the case, when the other seven petitions are pending for final hearing, it is necessary to grant the prayer made in the Civil Application. Hence, the Civil Application is allowed and the same is disposed of accordingly. MISC CIVIL APPLICATION (RESTO)(ST) NO.19045/2008 Heard the learned Counsel for the parties. For the reasons stated in the application as also the reasons stated in the order on Civil Application No. 28 of 2009, the prayer made in the MCA is granted and Writ Petition No. 828 of 1997 is restored to file 5 subject to payment of costs of Rs.500/- to be paid to the respondent No.3(b) by the applicant within a period of one week from today. The learned Counsel for the petitioner states that the costs of Rs.500/- would be immediately paid to the learned Counsel for the respondent No.3(b) for and on behalf of the respondent No.3(b) today itself. In such circumstances, the Writ Petition No. 828 of 1997 be listed along with the other writ petitions for final hearing on 18th of February, 2009. Steno copy of the order duly authenticated by the Court Sheristedar, be furnished to the learned Counsel for the parties on payment of usual charges. JUDGE *rrg.