HVN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 278 OF WRIT PETITION NO. 278 OF WRIT PETITION NO. 278 OF 2008 Niranjana Jhaveri ... Petitioner Versus The Union of India and Ors. ... Respondents Mr.M.K. Kachwala i/by Khaitan & Jayakar for Petitioner. Mr. R.V.Desai, Sr. Counsel with Mr. M.I. Sethna, Sr. Counsel, Mr. A.S. Rao, Ms. S.V. Bharucha and Mr.H.P.Chaturvedi for Respondents. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & R.S. MOHITE, JJ. R.S. MOHITE, JJ. R.S. MOHITE, JJ. DATED: MARCH 13, 2008 DATED: MARCH 13, 2008 DATED: MARCH 13, 2008 P.C. P.C. P.C. . Rule. Heard forthwith. . The Petitioners have approached this court consequent to the rejection of their application for setting aside the exparte order for waiver of pre deposit and consequential dismissal of the appeal. . A few facts necessary for disposing of the Petition may be set out. . The Petitioners had preferred the appeal and filed an application for waiver of deposit which came to be disposed on 2.3.2007 with a direction that the Petitioners were to pay the whole amount of penalty within 30 days from the date of receipt of the order failing which the Appeal would be liable to be dismissed on that count alone. . The Petitioners herein filed an application for recalling the order on 25.7.2007. The learned tribunal held that the application does not show in what manner the order dated 2.3.2007 can be reviewed in the absence of the ground available for review. After rejecting the said application as the Petitioners herein failed to deposit the amount, the appeal was also dismissed. . It is the contention of the Petitioners that they had no notice of hearing and in these circumstances, and considering the facts on record, their application which was dismissed in the matter of waiver of pre-deposit, ought to have been allowed. We find that the appellants were represented through their counsel who was on record. On 31.8.2006 the appellants were not present nor were represented. The notice, it appears, was sought to be served on the Petitioners. The Roznama entry dated 28.11.2006 shows the appellant not present and postal remark as "left from the place". It was directed that the service to be affected by affixation. The entry of 2.3.2007 shows that the appellants were served by affixation and the application for dispensing with pre-deposit was dismissed. On 14.5.2007, it is noted that the appellants were not present. On 12.7.2007, an adjournment was sought on behalf of the Petitioners. On 13.7.2007 the Petitioners contended that they did not have notice of the hearing. . It would thus be clear that when the application for waiver of pre-deposit was dismissed on 2.3.2007, the appellant were sought to be served by affixation. The roznama entry also shows that the Appellants Office had shifted. Though the entry dated 2.3.2007 sets out that the appellants were served by affixation, it is not possible from the record to note if in fact the affixation was on 2.3.2007 or on earlier date. . The question to be answered is when the Petitioners herein who were appellants before the tribunal were represented by their counsel, in the absence of the appellants could not notice be served on thier counsel of the next date of hearing. This was not done. In fact on 30.7.2007, the grievance was made on behalf of the Petitioners that they had no notice of the hearing on 2.3.2007. . Considering the above, and as the order visits the Petitioners with civil consequences and liability is also substantial, in our opinion, an opportunity need be given to the Petitioners herein to have their application for waiver of pre deposit be heard on merits and consequently also appeal pursuant to the order that may be passed by the learned tribunal. . The application filed cannot be strictly styled as an application for substantive review. It was basically in the nature of an application for setting aside the exparte order in other words procedural review. It is settled proposition of law that the power to set aside an exparte order is in the nature of procedural review which power is inherent in every court and tribunal. Considering the above, in our opinion, this would be a fit case where we set aside the impugned orders dated 2.3.2007 and 7.9.2007 and remand the matter back to the tribunal for hearing the Petitioner’s application for waiver of pre-deposit. The parties to appear before the learned tribunal on 8.4.2008 at 10.30 a.m. before the tribunal which thereafter will give necessary date for hearing of the matter. . On behalf of the Petitioners the learned counsel further makes a statement that they will appear before the tribunal and that no further notice is required to be given to them. Statement accepted. . Rule made absolute accordingly. No order as to costs. (R.S. MOHITE, J.) (R.S. MOHITE, J.) (R.S. MOHITE, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)