SM 1 18.ao.1022.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1022 OF 2010 Mrs. Farzana Faruq Furniturewala ....Appellant. Versus Mr. Shivram Narayan Malvi ....Respondent. ____________ Mr. Pradeep M. Patil for the Appellant. Mr. Nitin Muley for the Respondent. CORAM: R. M. BORDE, J. DATED : DECEMBER 15, 2011. P.C.: Heard. 2. By consent of both the counsel appearing for the parties, the appeal is taken up for final disposal at the admission stage. 3. The appellant is seeking an order for setting aside the order of dismissal of the suit. Her application has been turned down by the Trial Court in view of the order passed on 18th February, 2010 which is the subject matter of challenge in this appeal from order. The appellant/original plaintiff instituted a suit claiming declaration of ownership and removal of encroachment committed by the respondent over the suit property to the extent of 10 Gunthas of land. The suit was presented in the year 1999, however, the same was listed for hearing in the year 2006. On the date prescribed in the matter, on 16th November, 2007 neither the plaintiff nor her Constituted Attorney were SM 2 18.ao.1022.10 present, as such, the Trial Court has dismissed the suit for want of prosecution. It is informed by the counsel appearing for the respondent that the plaintiff and her Constituted Attorney failed to lead evidence and such the suit came to be dismissed. 4. I have perused the record as well as the order of dismissal of the plaint. It is the contention of the plaintiff that she is more than 54 years of age and resides at Mumbai and she was not able to attend the court proceedings as such she appointed the Constituted Attorney to look after the litigation. Her Constituted Attorney was also suffering from diabetics and high blood pressure and as such, he could not remain present on given date. The Constituted Attorney appointed by the plaintiff has, also, passed away and his son has been appointed as a Constituted Attorney now, who also failed to take steps in the matter. 5. Considering the facts and circumstances of the case and considering the nature of the litigation, I am of the view that one more opportunity needs to be given to the plaintiff. The suit presented by the plaintiff is for the reliefs of declaration and injunction. Since the litigation is concerning immovable property the matter needs to be adjudicated as far as possible on its own merits. In my view, inconvenience caused to the respondent can be compensated by directing the appellant to pay the costs. The appeal from order deserves to be allowed and the same is accordingly allowed. The order passed by the Trial Court on 18th February, 2010 in Miscellaneous Civil Application No. 49 of 2009 is quashed and set aside and the application tendered by the plaintiff/appellant herein for restoration of the suit shall be SM 3 18.ao.1022.10 deemed to have been allowed subject to deposit of costs of and amount of Rs.10,000/- before the Trial Court. The amount shall be deposited by the plaintiff before the Trial Court within a period of four weeks from today. On deposit of such amount of cost, the original defendant/respondent herein shall be at liberty to withdraw the same. In the event of failure to deposit of costs within specific period, the order of this Court in this appeal from order shall be deemed to have been withdrawn. Considering the pendency of the matter since long, the Trial Court is directed to decide the pending suit as expeditiously as possible, preferably within a period of one year from today. 6. The parties assure to cooperate with the Trial Court for early disposal of the suit. (R. M. BORDE, J.)