ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 4870 OF 2008 PETITION NO. 4870 OF 2008 PETITION NO. 4870 OF 2008 Mr.Naresh K.Gupta ...Petitioner Vs. The Union of India & Ors. ...Respondents. Mr.R.G.Walia for the Petitioner. Mr.Suresh Kumar for the Respondents. CORAM CORAM CORAM : R.V.MORE, J. : R.V.MORE, J. : R.V.MORE, J. DATED DATED DATED : 15th July, 2008 : 15th July, 2008 : 15th July, 2008. P.C. P.C. P.C. . Heard the learned counsel appearing for the respective parties. 2. Rule. By consent, Rule returnable forthwith. 3. The Petition takes exception to the order passed by the Principal Judge, Bombay City Civil Court, Greater Bombay whereby notice of motion taken out by the Petitioner was dismissed. The facts for the purpose of disposal of the Petition are as follows:- 4. The Petitioner is a retired Group "A" Railway Officer and while he was posted in Mumbai, he was allotted Railway quarter. On 18/10/2004, the Petitioner was served notice under Section 4 of Public Premises ( Eviction of Unauthorized Occupants) Act,1971. The Petitioner gave ( 2 ) reply on 19/09/2005 to the above notice. The petitioner did not vacate the above said quarter and therefore, the proceeding was initiated by the Respondent No.1 for eviction. The Respondent No.2, Estate Officer by his ex-parte order dated 27/09/2005 recorded the finding that the Petitioner is in unauthorised occupation and directed him to vacate the Railway quarter. It is worth to mention that during the pendency of the proceedings before Estate Officer, petitioner sent his undertaking to the General Manager, Respondent No. 1 stating therein that he will vacate the Railway quarter on 22/11/2005. On 27/09/2005 the Estate Officer passed an ex-parte order of eviction by recording the finding that the Petitioner is in unauthorized possession of Railway quarter since 30/09/2002. 5. The Petitioner filed Miscellaneous Appeal No.202/2005 before the City Civil Court at Bombay for quashing and setting aside the ex-parte order. This Appeal was dismissed for default and therefore, the Petitioner constrained to take Notice of Motion No.3535/2007 for restoration. This Notice of Motion was dismissed by the learned Principal Judge of the City Civil Court, Mumbai on the ground that the Petitioner has already given an undertaking that he will vacate the Railway quarter and ( 3 ) the same is vacated accordingly, therefore, no useful purpose will be served by restoring the Appeal. 6. Mr.Walia, the learned counsel appearing for the Petitioner submits that on 05/10/2007 Miscellaneous Appeal No.202 of 2007 was dismissed for default. On that day, he could not remain present as he required to rush to his residence as his father was not well. Mr.Walia, further submits that Estate Officer has recorded the finding that the Petitioner was in unauthorized possession, though in fact the Petitioner has vacated the Railway Quarter long back. The Petitioner in view of above finding is not getting retirement dues. Therefore, appeal requires to be heard on merits, and Notice of Motion could not have dismissed on the ground that Petitioner has already vacated the Railway Quarter. 7. Having heard the learned counsel appearing for the respective parties and having gone through the impugned order, in my opinion, there is merit in the petition. The learned counsel appearing for the Petitioner could not remain present on 05/10/2007 as he was forced to leave the Court due to his father’s ill health. This fact is not seriously disputed by the learned counsel appearing for the Respondents. In that view of the matter in my ( 4 ) opinion, the Petitioner has given sufficient cause for his lawyers absence on 05/10/2007. In my view, the ground on which the learned Principal Judge refused to restore the appeal is also not correct. The Estate Officer has recorded the finding that the Petitioner was in unauthorized possession of the Railway Quarter. In view of this finding though the petitioner has already vacated the Railway quarter, he is not getting retirement dues. The Petitioner in Appeal can point out that the finding of Estate Officer about unauthorized possession of Railway quarter is not correct, and persue the Appellate Court to set aside ex-parte order of Estate Officer. 8. In view of the above facts, in my opinion, the Petitioner deserved to be given an opportunity to putforth his case in Appeal. The impugned order, therefore, deserves to be quashed and set aside. The Rule is made absolute accordingly. The Petitioner’s Notice of Motion No.3535/2007 is allowed. The Miscellaneous Appeal No.202/2007 pending before the City Civil Court is restored to file. The City Civil Court shall dispose of the above said Appeal as expeditiously as possible in accordance with law. 9. The Petition is disposed of with no order as to costs. ( 5 ) ( R. V. MORE, J.) R. V. MORE, J.) R. V. MORE, J.)