1 caw1328-10 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1328 OF 2010 IN CIVIL APPLICATION NO.2806 OF 2007 IN FIRST APPEAL NO.1707 OF 2007 Dnyaneshwar N. Mulik & Ors. ....Appellants V/s. M/s.Kolte Patil Enterprises & Ors. ....Respondents Mr.Vijay Killedar for the Appellants. Mr.Dushyant Pagare i/b Mr.Rajesh Dadar for Respondent Nos.58. CORAM : S.J. VAZIFDAR AND R.Y. GANOO, JJ. DATE : 8TH MARCH, 2011. P.C. :- 1. The appellants have filed this application seeking recall of the order dated 4.3.2010 which reads as under :- “1. Mr.Killedar, learned counsel for the applicants/appellants submit that in civil application no.5313 of 2008, this court had allowed substituted service by publication and accordingly notices were published in the newspapers in pursuance of that order. We have perused the record. It appears that after admission of the appeal, no steps have been taken by the appellants to serve the respondents in appeal. The service in civil application no.5313 of 2008 by publication cannot be treated as good service in the appeal and other civil applications. We grant two weeks time to the applicants/appellants to file civil applications for substituted service in the appeal and pending civil applications. If no steps are taken within a period of two weeks from today, the appeal and civil 2 caw1328-10 applications shall stand dismissed for non prosecution without reference to the court. ” 2. The appeal was admitted on 25.10.2007. On 14.10.2008 the appellants filed Civil Application No.5313 of 2008 seeking permission for alternate service by way of publishing the notices in leading newspapers. By an order dated 16.6.2009, a Division Bench to which one of us (S.J. Vazifdar, J.) was a party, allowed the civil application and granted permission to publish the notices in Indian Express in its editions in the concerned States. The appellants thereafter filed Civil Application No.4016 of 2009 for modification of the order dated 16.6.2009. The same Division Bench by an order dated 21.11.2009, allowed the application by permitting the appellants to publish the notices in the newspapers and places specified therein. The order recorded the appellants’ undertaking to publish the notices within two weeks and directed copies thereof to be placed on record within two weeks thereafter. 3. The learned counsel appearing on behalf of the appellants stated that the notices were in fact published pursuant to the said order. The notices were in respect of the appeal itself and not of Civil Application No.5313 of 2008. The Division Bench that passed the order dated 4.3.2010 sought to be recalled was obviously was not informed about the same, as a result whereof, it was observed that after the admission of the appeal, no steps had been taken by the appellants to serve the respondents in appeal. As a consequence thereof, the order dated 4.3.2010 came to be passed. 3 caw1328-10 4. As the order dated 4.3.2010 is based on a factually incorrect basis albeit due to the default on the part of the appellants in not pointing out the correct facts, we are inclined to re-call the order dated 4.3.2010. We see no reason to allow the appellants to suffer as a result of this error. 5. The order dated 4.3.2010 is therefore recalled. The appellants shall however, serve a copy of this order on the respondents by R.P.A.D. within four weeks from today. The civil application is accordingly disposed of. (R.Y. GANOO, J.) (S.J. VAZIFDAR, J.)