M N RANADE Vs. BANK OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Mr.Shroff waives service of notice on behalf of respondent No.1. The respondent No.2 though served, has not appeared. The affidavit of service qua respondent No.2 may be filed latest by tomorrow. Even otherwise, the respondent No.2 is an Estate Officer of respondent No.1 Bank and the main contesting party is the respondent No. 1, which is a Nationalized Bank. With the consent of the learned Advocates appearing in the matter, rule is made returnable forthwith and heard.

(2.) By way of this petition, the petitioner has challenged the order passed by the City Civil Court, Greater Mumbai, dated 12-10-2011 by which the restoration application submitted by the petitioner-applicant bearing No.59 of 2011, which was filed for restoring the main proceedings i.e. Miscellaneous Appeal No.5 of 2010, is dismissed. The petitioner herein had challenged the order passed by the Estate Officer appointed under Section 3 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, dated 27-01-2010 in Eviction Case No.1 of 2007. The said eviction order was challenged by the petitioner by way of Miscellaneous Appeal No.5 of 2010. At the time of filing of the appeal, the petitioner preferred an interim application for stay and the learned Judge of the City Civil Court passed an ex-parte order staying the order passed in Eviction Case No.1 of 2007. Thereafter, the appeal of the petitioner was dismissed for default as none was present for the petitioner. The petitioner thereafter, preferred an application for setting aside the order of dismissal by way of preferring the Miscellaneous Application No.59 of 2011. The prayer was made to restore the Miscellaneous Appeal No.5 of 2010 by stating various grounds. The learned Judge found that the grounds mentioned by the petitioner herein for restoring the Appeal, do not inspire confidence. It was found that on perusing the Rozanama, the petitioner and his Advocate are consistently remained absent since 14-03-2011 and even subsequent dates thereafter. It was observed that the Advocate on record is expected to shoulder his responsibility and it is not open to him now to say that the petitioner/appellant is 85 years of age and he is ill. There is no documentary evidence produced on record about the sickness of the appellant/petitioner. The learned Judge of the City Civil Court held that the ad-interim order was obtained without giving notice to the other side and behind the back of the respondents. Considering the aforesaid aspects, the appeal of the petitioner was dismissed. The said order was challenged by the petitioner by way of the present petition.

(3.) The learned counsel for the petitioner submits that the ad- interim order was obtained in an appropriate manner and though, attempts were made to serve the other side, the petitioner could not succeed in serving notices to the other side and in view of the urgency, the learned Judge after satisfying himself and looking to the urgency, had granted ad-interim order. It is submitted that for restoring the matter, it was not open to the learned Judge to consider as to whether the ad- interim order was obtained appropriately or not, as she was required to consider only the aspect regarding restoring the appeal which was dismissed for default. She further submits that if the appeal is restored, the petitioner undertakes before this Court that no adjournment will be sought for and the petitioner's Advocate will argue the matter as and when it is listed for hearing.