-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1666 OF 2009 Gram Panchayat Tembhu Through Sarpanch Shri Shivaji Vilasrao Patil : Petitioner (Orig.Applicant) V/s. Shri Vinod Laxman Bhandare : Respondent (Orig.Respondent) ... Mr.Tanaji Mhatugude i/b. Mr.Sugandh B. Deshmukh for the petitioner. Mr.Nitin A. Kulkarni for the respondent. ... CORAM : S.A. BOBDE, J. DATE : MARCH 02, 2009. P.C. 1. Rule, returnable forthwith. Mr.Kulkarni for the respondent waives service. Heard by consent. 2. After hearing the matter for sometime, it is clear that the petitioner had not made an appropriate application for setting aside the ex parte award under rule 26 of the Industrial Disputes (Bombay) Rules, 1957 -: 2 :- which reads as follows:- "26. Board, Court, Labour Court, Tribunal or Arbitrator may proceed exparte.-(1) If without sufficient cause being shown, any party to a proceeding before a Board, Court, Labour Court, Tribunal or an Arbitrator fails to attend or be represented, the Board, Court, Labour Court, Tribunal or Arbitrator may proceed ex-parte. (2) Where any award, order or decision is made ex-parte under sub-rule (1), the aggrieved party, may, within thirty days of the receipt of a copy thereof, make an application to the Board, Court, Labour Court, Tribunal or an Arbitrator, as the case may be, to set aside such award, order or decision. If the Board, Labour Court, Tribunal or Arbitrator is satisfied, that there was sufficient cause for non-appearance of the aggrieved party, it or he may set aside the award, order or decision so made and shall appoint a date -: 3 :- for proceeding with the matter: Provided that, no award, order or decision shall be set aside on any application as aforesaid unless notice thereof has been served on the opposite party." 3. The petitioner appears to have made an application under the C.P.C. instead. Obviously, therefore, the Court did not take into account its own powers under rule 26 above and rejected the petitioner’s application. In this view of the matter, the learned counsel for the petitioner seeks leave to withdraw the application made under the wrong provision of law i.e. the C.P.C., with liberty to make a fresh application under rule 26, supra. The impugned order is thus set aside. The petitioner shall be allowed to withdraw the said application with liberty to make a fresh application under rule 26. The respondent shall not object on the ground of limitation. 4. In the circumstances, the Court shall not decline to entertain the fresh application on the law of limitation. The fresh application shall be decided expeditiously on its own merits. Rule is made absolute in the aforesaid terms. -: 4 :- S.A. BOBDE, J.