: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3558 OF 2008 NOTICE OF MOTION NO.3558 OF 2008 NOTICE OF MOTION NO.3558 OF 2008 IN IN IN SUMMONS FOR JUDGEMENT NO.352 OF 2007 SUMMONS FOR JUDGEMENT NO.352 OF 2007 SUMMONS FOR JUDGEMENT NO.352 OF 2007 IN IN IN SUMMARY SUIT NO.3019 OF 2006 SUMMARY SUIT NO.3019 OF 2006 SUMMARY SUIT NO.3019 OF 2006 M/s.Videocon Industries Ltd. .. Plaintiffs. Versus Manohar Dwarkadas Rohra .. Defendant. Mr.Lalit Jain i/b.Ram & Co. for plaintiffs. Mr.J.S.Chandnani i/b.S.P.Kanuga for defendant in support of notice of motion. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 21st October, 2008. DATE : 21st October, 2008. DATE : 21st October, 2008. P.C. :- P.C. :- P.C. :- 1. This suit came to be decreed on 17.7.2008. The defendant has taken out this notice of motion for setting aside the said decree. : 2 : 2. The defendant has not filed any affidavit-in-reply though served. Learned Advocate Mr.Jain appearing for the plaintiffs strenuously opposed the notice of motion without filing any affidavit-in-reply. 3. I have heard learned Advocate appearing on both the sides. The suit came to be decreed on 17.7.2008. The defendant has filed affidavit-in-support of the motion and has specifically stated in the affidavit-in-support of the motion that the matter appeared on the board on 17.7.2008 and that the name of the Advocate appearing for the defendant, who had filed Vakalatnama did not appear on the Board of the Association which is published for the benefit of the Advocates and litigating public. The Advocate for the defendant has annexed a xerox copy of the said Board. On 17.7.2008, the matter was at Sr.No.56. Name of the Advocate for the defendant does not appear on the said Board. Name of the litigant Mr.Manohar D.Rohra appears. However that is of no consequence as the Advocate for the defendant was to peruse the board, see whether his name is shown on board and attend to the matter. Surely, if the name of the Advocate for the defendant, who had filed Vakalatnama would have appeared : 3 : on the Board, the said Advocate would have remained present. If after seeing the name of the Advocate for the defendant, if he would have remained absent, the question of negligence on the part of the Advocate for the defendant would have been tested. It cannot be accepted that the defendant, who is an individual would remain present on each and every date when the matter is on board when he has appointed an Advocate to appear in the matter on his behalf. 4. This is an unfortunate case where the litigant had to face the decree for a mistake done by the persons which are concerned with the typing of the board. The Advocates and the litigants rely on the board and the defendant’s Advocate cannot be blamed if his name did not appear on the board. 5. The argument advanced by learned Advocate Mr.Jain that the defendant or his Advocate ought to have been careful cannot be accepted because no care was required to be taken by the Advocate for the defendant when his name did not appear on the board. The Advocate for defendant had filed the Vakalatnama and he was to watch the board. It was the duty of the office to prepare a proper board : 4 : and give it for printing. This is an unfortunate case where no fault can be found on the part of the Advocate for the defendant. 6. It is required to be mentioned that the Advocate for the plaintiff knew that the defendant has filed Vakalatnama and that the name of the Advocate for the defendant did not appear on the Board. By reading the order dated 17.7.2008, nothing is found to show that the court was informed that the Advocate for the defendant has filed Vakalatnama and his name does not appear on the Board of Association. If that would have been pointed out, the court would not have passed the decree. 7. In my view, this is a fit case where court should intervene and set aside the decree and allow the defendant to attend to the suit in accordance with the provisions of law. Hence the order :- O R D E R O R D E R O R D E R i) Notice of Motion is made absolute in terms of prayer clauses (a) and (c). No order on prayer clause (b) as the summons for judgement is : 5 : required to be heard on merits. ii) There shall be no order as to costs. iii) Summons for judgement No.352 of 2007 is to be heard on merits. 8. Learned Advocate for the defendant seeks time to file affidavit-in-reply in the summons for judgement. Time is granted. Adjourned to 27.11.2008 for hearing of the summons for judgement. Parties to complete the pleadings before that. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)