IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2828 OF 2009 Ms.Eva Dradacova, Consul General & Anr. ...Petitioners V/s. M/s.Khemka Exports Pvt.Ltd. ...Respondent ...... Mr.S.U.Kamdar i/b Mr.Vinod Juwale for Petitioners. Mr.V.A.Thorat, Sr.Counsel i/b M/s.Niranjan & Co. for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 17, 2009. MARCH 17, 2009. MARCH 17, 2009. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Thorat waives notice for Respondent. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Writ Petition under Article 227 of : 2 : the Constitution of India takes exception to the Judgment and Order passed by the Appellate Bench of the Small Causes Court, Mumbai dated 26th September 2008 in Appeal No.24 of 2008. For the nature of order that I propose to pass, it is not necessary to advert to all the aspects of the matter. 5. Suffice it to observe that the appeal filed before the Appellate Bench of the Small Causes Court being Appeal No.24 of 2008 questioned the correctness of the order passed by the Trial Court dated 10th December 2007 holding that the Suit as filed by the Respondent cannot proceed in terms of Section 86 of the Code of Civil Procedure as well as Section 3(1)(b) of the Maharashtra Rent Control Act, 1999. The Appellate Bench reversed the decision of the Trial Court by the impugned decision. 6. The principal grievance made before this Court is that the Appeal proceeded ex-parte against the Petitioners. The Appellate Bench proceeded on the assumption that the Petitioners were duly served. However, the service of notice in appeal : 3 : was obviously not in terms of provisions of Order V Rule 26A of the Code of Civil Procedure. That mandatory procedure has not been followed in the present case. 7. In the circumstances, without examining the correctness of the opinion recorded by the Appellate Bench of the Small Causes Court on the relevant issues, the appropriate course is to set-aside the impugned Judgment and Order and relegate the parties before the Appellate Bench by restoring the Appeal to the file of the Appellate Bench to its original number so that the same can be considered afresh on its own merits in accordance with law. 8. It is placed on record that the question whether the Petitioners have approached this Court without claiming immunity in pursuing the proceedings instituted before the lower Court and to be proceeded before the Appellate Court is a matter which can be considered at the appropriate stage. The argument of the Petitioners is that the Petitioners have claimed immunity all throughout. : 4 : As aforesaid, that is a matter which can be considered at the appropriate stage. 9. It is placed on record that the Petitioner through Counsel has assured that insofar as issue regarding service of appeal would now stand resolved in terms of the arrangement worked out in the present order and that will not be relevant with regard to procedure in the Suit or for that matter in the Appeal which is restored. 10. The restored appeal shall be disposed of by the Appellate Bench of the Small Causes Court as expeditiously as possible, preferably before 30th April 2009. A.M.KHANWILKAR, J.