1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 278 OF 2006 APPEAL FROM ORDER NO. 278 OF 2006 APPEAL FROM ORDER NO. 278 OF 2006 WITH CIVIL APPLICATION NO. 363 OF 2006 IN NOTICE OF MOTION NO. 12 OF 2006 IN S.C. SUIT NO.4120 OF 2004 Sandhya Sanjay Patel ... Appellant (Org. Plaintiff) Vs. Subhash Surendranath Oza ... Respondent (Org. Defendant) Ms. Daksha M.Shah, Advocate, for the appellant. Mr. V.V.Mishra, Advocate, for respondent - absent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 13th March,2008. DATE: 13th March,2008. DATE: 13th March,2008. P.C. P.C. P.C. 1. Heard learned Counsel for the appellant. 2 Perused the impugned order. 2. It appears that the appellant had filed S.C. Suit No.4120 of 2004 under Section 6 of the Specific Relief Act for possession of suitw premises. That suit was dismissed in default on 8.11.2005. The plaintiff also took out draft Notice of Motion for setting aside the order dated 8.11.2005 and for restoration of the suit to file. It was contended that on the relevant date, the plaintiff was suffering from health problem and her advocate had some personal difficulty and this fact was communicated to the Clerk of the Advocate. The learned trial Court noted that on an earlier occasion also the suit was dismissed in default and on a Notice of Motion taken out by the plaintiff, the suit was restored to file on 23.9.2005 subject to costs of Rs.350/-. That time same reasons were given. The learned trial Court noted that after restoration of the suit, the plaintiff had failed to lead evidence and had failed to appear on 8.11.2005 and therefore the suit was dismissed in default. Besides this conduct of the plaintiff remaining absent repeatedly, while passing the impugned order rejecting the Notice of Motion, the learned trial court noted that it was transpired that the plaintiff had voluntarily surrendered the suit premises to the defendant by agreeing to accept certain amount and the defendant had paid that amount to some third party who had failed to make payment to the 3 plaintiff. In view of this, the trial Court rejected the Notice of Motion on 22.11.2005. That order is challenged in present appeal. 3. As it appears that the plaintiff was not forcibly dispossessed from the property and she had herself surrendered the possession for some consideration, she could file a suit for recovery of the amount, but certainly a suit under Section 6 of the Specific Relief Act would not lie. Assuming that there was good reason for her non-appearance on 8.11.2005, still she had no case which could be pursued under Section 6 of the Specific Relief Act. Therefore, I see no reason or justification to interfere in the order. 4. In the result, the Appeal stands dismissed. 5. As the Appeal itself is disposed of, Civil Application No. 363 of 2006 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)