1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1195 OF 2009 Shashikant Narayan Vasagadekar & Ors. .. Petitioners versus Rajendra Shamrao Desai & Ors. .. Respondents Mr.Ashutosh M. Kulkarni for the petitioners. Mr.Umesh Mankapure for respondent No.1. CORAM : A.S.OKA, J. DATE : 8th September 2009. P.C.: . Heard learned counsel appearing for the petitioner. The petitioner is the third party to the suit filed by the contesting respondents. An application made by the petitioner under sub-rule 2 of Rule 10 of Order I of the Code of Civil Procedure, 1908 has been rejected by the trial Court by the impugned order. 2. In the year 2001 the petitioner had made a similar application before the trial Court. The said application was ordered to be filed as not pressed by order dated 16th September 2004. The learned trial Judge noted that when the application was called out, the present petitioner and his advocate were absent and the application was pending for long time. 3. Thereafter an application was filed by the petitioner on 8th October 2 2004 for setting aside the order passed on the earlier application and for restoration of the said application. On 27th January 2005 the said application for restoration was not pressed by the advocate for the petitioner. Thereafter, the present application was filed on 13th September 2007 on which impugned order has been passed. In the impugned order the learned trial Judge noted the aforesaid facts and has observed that the petitioner has not disclosed the provision of law under which the application has been filed and delay of three years has not been explained. 4. The learned counsel appearing for the petitioner invited my attention to the averments made in application at Exhibit 49 on which impugned order has been passed. He pointed out that it is disclosed in the said application that after the first application was filed, a Division Bench of this Court passed an order dated 15th December 2004 in writ petition filed by the petitioner. He pointed out that it is disclosed in the application that the petitioner was under an impression that the directions in the impugned order will be complied with by the authorities and therefore, the subsequent application made for restoration of the earlier application was not pressed by the petitioner. He submitted that without considering the said aspects, the learned trial Judge has rejected the application by passing the impugned order. He submitted that the suit has been filed for challenging an order passed by the City Survey Authorities on the basis of application made by the petitioner. He pointed out that the said fact has been disclosed in the averments made in the plaint and therefore, the petitioner was necessary 3 and/or proper party to the suit. He submitted that without considering the merits of the application, the impugned order has been passed. 5. I have carefully considered the submissions. It is not in dispute that way back in the year 2001, the present petitioner filed an application for the same relief. The said application at Exhibit 21 which was filed in the year 2001 was ordered to be filed as not pressed by the trial Court by order dated 16th September 2004. The said application was ordered to be filed as the petitioner and his advocate were absent and the application had remained pending for long time. On 8th October 2004 an application was made by the petitioner at Exhibit 35 for setting aside the said order dated 16th September 2004 and for restoration of the said application at Exhibit 21. On 27th January 2005 the advocate for petitioner made an endorsement on the said application at Exhibit 35 that the petitioner was not pressing the said application. Accordingly, the application was filed as not pressed. The impugned order has been passed on application which is made on 13th September 2007. The submission of the learned counsel appearing for the petitioner is that in view of the order of Division Bench passed on 15th December 2004, the application at Exhibit 35 was not pressed. On the face of the order of the Division Bench, there is no direct connection between the application made by the petitioner and the order passed by the Division Bench. Apart from that, by order dated 15th December 2004 the Division Bench directed the 2nd and 5th respondents to consider an application made by the petitioner and to pass order within a period of three months from that 4 day. The said period expired on 14th February 2005. As stated earlier, the present application was filed two and half years thereafter on 13th September 2007. If the case of the petitioner was that the application at Exhibit 35 was not pressed in view of the order of the Division Bench, the petitioner could not have waited till 13th September 2007 to file a fresh application. 6. Thus, the position which emerges is that for claiming relief which is claimed in the present application at Exhibit 49, an application at Exhibit 21 was made by the petitioner in the year 2001 which was ordered to be filed as not pressed in September 2004. An application for restoration of the said application was disposed of as not pressed on 27th January 2005. In the circumstances, the trial Court was justified in not entertaining the present application made in September 2007. Though the reasons recorded by the trial Judge in the impugned order may not be happily worded, it is not possible to find fault with the impugned order. Though the impugned order is being confirmed, the same will not prevent the trial Court from examining the question whether the plaintiffs have impleaded all necessary parties to the suit. Rejection of the application of the petitioner will not affect other remedies available to the petitioner. Subject to what is observed above, the writ petition is rejected. (A.S.OKA,J)