1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No. 3346 of 2006 . in Suit No.2870 of 1987 Mahalaxmi Constructions .. Plaintiff v/s. Shantaram S. Bhandari & Ors. ..Defendant/s Mr. Ankit Lohiya i/b. M.L.Chaturvedi for the Plaintiff. CORAM : R.Y.GANOO, J. DATED : 17th March, 2010 P.C. : 1. The motion is taken out for setting aside the Order dated 24.8.2006 by which the suit filed by the plaintiffs was dismissed for default. The present motion was taken out against in all 16 defendants. However, the motion came to be dismissed for non service of defendants other than defendant nos.10. 12, 13 and 14, that is to say motion is alive so far as defendant nos.10, 12, 13 and 14. Nobody on behalf of the defendant nos. 10, 12, 13 and 14 was present when the motion was taken up for final hearing, though served. 2 2. I have perused the order dated 24.8.2006 by which the suit came to be dismissed. 3. It is seen that the learned Advocate for the plaintiffs returned the papers to the plaintiffs and thereafter the matter appeared on board on 24.8.2006 on which date the suit came to be dismissed. Learned Advocate for the plaintiffs conceded that the representative of the plaintiff should have appeared on the day when the matter was on board. He submitted that the Plaintiffs thought that an Advocate should appear before the Court and attend the matter. He prays for grant of motion so that the suit can be restored to file. He submitted that so far as the other defendants are concerned, the motion has been dismissed for want of service and against the said order the appeal has been filed and the said appeal is pending . Having considered the peculiar facts and circumstances, it is seen that the representative of the plaintiffs failed to appear before the court only on one occasion and that too because he was not properly advised as to how he should attend the matter. In my view, the absence on the part of the representative in the Court should not result in dismissal of the suit. The defendant nos.10, 12, 13 and 14 against whom this motion has been taken 3 out have chosen to remain absent. This goes to show that they are not interested in opposing the motion. 4. In view of the above, the motion can be granted, the plaintiffs will have to pay costs. The costs are fixed at Rs.5000/- to be deposited in the Court so that at the time of disposal of the suit appropriate order regarding appropriation of this amount can be passed. Hence the following order. ORDER i. Motion is made absolute in terms of prayer clause (a), so far as the defendant nos.10, 12, 13 and 14. Suit is restored to the file so far as defendant nos.10, 12, 13 and 14 . ii. Plaintiffs to deposit in this Court cost of Rs.5000/- (Rupees Five Thousand Only) on or before 15.4.2010. iii. Orders regarding appropriation of the costs shall be passed at the time of disposal of the suit. iv. Plaintiffs to inform this order to defendant nos.10, 12, 13 and 14. [R.Y.GANOO, J.]