SM 1 9.ao.775.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 775 OF 2011 WITH CIVIL APPLICATION NO. 1030 OF 2011 IN APPEAL FROM ORDER NO. 775 OF 2011 Shri. Rajendra Dagduji Waghmar and anr. ....Appellants. Versus Shri. Yashwant Bapurao Sawant ....Respondent. ____________ Mr. Sumit U. Khaire for the Appellants. Mr. R. M. Deshmukh for the Respondent. CORAM: R. M. BORDE, J. DATED : OCTOBER 13, 2011. P.C.: The appellant is raising exception to the order passed by the Trial Court below Exhibit-5 in Special Civil Suit No. 3 of 2010 decided on 2nd April, 2011. It is the contention of the appellant/original plaintiff that the Trial Court has decided the application below Exhibit-5 without hearing the contentions of the appellant/original plaintiff. The appellant/original plaintiff could not remain present before the Court on the given date when the application was taken up for hearing. In these circumstances, it was not open for the Court to decide the application on merits. In any case, since the application has been presented for recall of the order, it would be appropriate for the Trial Court to consider the application and decide the same. 2. The Appeal from Order stands disposed of with a direction to the Trial Court to decide the application at Exhibit-37 presented by the appellant/original plaintiff on its own merits and SM 2 9.ao.775.11 in accordance with the provisions of law. 3. Appeal from Order stands disposed of. In view of disposal of the Appeal from Order, pending Civil Application does not survive and stands disposed of accordingly. (R. M. BORDE, J.)