1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2248 of 2008 Kala Vasirani & Ors. .. Petitioners versus M/s.Crest Animation Studios Ltd. .. Respondent ... Mr.Leon Samuel for the petitioner. Mr.R.S. Datar for the respondent. CORAM : A.M.KHANWILKAR, J DATED : 6th August 2008 P.C.: 1. Heard counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Datar waives notice for the respondent. As short question is involved, petition is taken up for final disposal forthwith by consent. 3. This writ petition under Article 227 takes 2 exception to the judgement and order passed by the Court of Small Causes at Bombay below Exhibit-16 in R.A.E. and R. Suit no. 214/381 of 2005. By this order, the application preferred by the petitioner for dismissal of the suit in view of the conditional order passed on 18th April 2006 in Miscellaneous Notice no.19 of 2006 has been rejected. The petitioner has questioned the correctness of the impugned judgement on the argument that the lower court has adverted to the fact that the purported cheque issued by the respondent in favour of former Advocate of the petitioner Mr.K.M.Bhot was dated 8th November 2006, which is much after outer limit provided in the conditional order 18th April 2006 i.e. 7th June 2006. It necessarily follows that the amount was not in fact offered by the petitioner on or before 7th June 2006 which was the conditional order passed on the earlier occasion. This contention has not been adverted to at all by the trial court and there is no adjudication thereof. 4. The defence of the respondent is that the cheque was handed over to the former advocate for the petitioner Mr.K.M. Bhot much before 7th June 2006 i.e. on 17th May 2006. However, that aspect will have to be considered by the trial court in the first instance. 3 5. Counsel for the respondent however submits that as a matter of fact, former advocate for the petitioner had offered the amount to the petitioner one day before filing of the present application and which offer was declined by the petitioner. Once again this is a matter which will have to be addressed by the trial court at the first instance, being question of fact. It is for the lower court to examine as to whether such offer fulfils the condition stipulated in order dated 18th April 2006. 6. The aforesaid aspects will have to be considered by the trial court in the first instance, which have not been dealt with in the impugned judgement. 7. In the circumstances, the impugned judgement and order is set aside and instead application Ex.16 is restored to the file before the trial court for re-consideration on merits in accordance with law. 8. All questions in the said application are left open to be decided afresh. 9. Rule made absolute in the above terms with 4 no order as to costs. 10. As Application is restored to the file of the trial court, Parties shall appear before the trial court on 22nd August 2008 on which date the trial court in the first instance proceed to hear Exhibit.16 keeping in mind the observations made in this order. . Ordered accordingly. (A.M.KHANWILKAR)