1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.684 OF 2009 WITH CIVI L APPLICATION NO. 853 OF 2009 Zaverchand Shah & Associate & Anr. .....Appellants. Versus Mali Ramabari & Ors. .....Respondents. Mr. M. U. Pandey for the Appellants. Mr. S. A. Sawant for Respondent No.1. Mr. J. G. Reddy for Respondent No.4. Mrs. K. K. Soraan for BMC-Respondent No.5. CORAM : R. V. MORE, J. DATED : 15th JULY, 2009. P.C.: Admit. By consent, the Appeal from Order is taken up for final hearing. 2. Heard Mr. Pandey, learned Counsel for the Appellants, Mr. Sawant, learned Counsel for Respondent No.1, Mr. Reddy, learned Counsel for Respondent No.4 and Mrs. K.K.Soraan, learned Counsel for BMC- Respondent No.5. The Respondent Nos.2 & 3 though served, none appears on their behalf. Otherwise also, Respondent Nos.2 & 3 are the formal parties to the present Appeal from Order. 3. The Respondent No.1 is the original plaintiff. She filed L.C.Suit No. 3561 of 2006, simplicitor for injunction. This suit was dismissed for non service of writ of summons upon the original defendants i.e. the present Appellants and 2 Respondent Nos. 2 to 5 by an order dated 13th June, 2008. The Respondent No.1 thereafter, took out notice of motion no. 1234 of 2008 for restoration of the said suit. This notice of motion was also dismissed for default by an order dated 1st August, 2008. The present Respondent No.1 thereafter, took out Review Application at Exhibit “I” for setting aside the order dated 1st August, 2008 passed in the notice of motion no. 1234 of 2008. By the order impugned, the learned Single Judge not only set aside the above said order dated 1st August, 2008 but also allowed the notice of motion no. 1234 of 2008 and restored the suit. 4. The grievance of the learned Counsel for the Appellants is that the learned Judge could not have allowed the notice of motion no.1234 of 2008 in as much as the Review Application was taken out only for setting aside the order dated 1st August, 2008. Mr. Sawant, learned Counsel for Respondent No.1 per contra supported the impugned order and submitted that the learned Trial Judge rightly allowed the Review Application as well as the notice of motion no.1234 of 2008 by passing a common order which is impugned in the present Appeal from Order. 5. The prayer clause (a) of the Revision Application reads as follows: “a) That this Hon’ble Court be pleased to set aside the order passed by this Hon’ble Court on 1st August, 2008 and the notice of motion no. 1234 of 2008 may be restored to the file and fresh date may be fixed for hearing.” The above prayer makes it clear that the Review Application was restricted to the Order dated 1st August, 2008 by which notice of motion no. 1234 of 2008 was dismissed for default. The said notice of motion no.1234 of 2008 was not at all subject matter of the Review Application and therefore, the learned Judge could not have decided the Review Application and the said notice of motion by a common order. I find substance in the contention of the 3 learned Counsel for the Appellants that he was not given any opportunity to contest the notice of motion no.1234 of 2008. 6. In the circumstances, the Appeal from Order is allowed. The impugned order, so far as it allows the notice of motion no.1234 of 2008 is quashed and set aside. The impugned order under which the order dated 1st August, 2008 is set aside thereby restoring the notice of motion no.1234 of 2008 is not disturbed. The learned Trial Judge shall hear the notice of motion no. 1234 of 2008 afresh after affording an opportunity to both the parties. Th said notice of motion shall be heard as expeditiously as possible and preferably within a period of four weeks from the date of receipt of this order. The parties present before the Court agrees that they will appear before the learned Trial Judge on 31st July, 2009. 7. Needless to mention that the said notice of motion shall be heard independently on its own merit and all points and contentions are expressly kept open, in this regard. The Appeal from Order is disposed of, accordingly. 8. In view of the disposal of the Appeal from Order, the Civil Application No. 853 of 2009 will not survive and therefore, the same is disposed of. sd/- (R. V. MORE, J.)