1 (CAW530/2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.530 OF 2011 IN WRIT PETITION NO0.4701 OF 2001 M/s National Non-Ferrous Industries & Ors ..... Applicants. V/s M/s R.B. Patel & Co. & Anr. ..... Respondents. And M/s. National Non-Ferrous Industries & Anr. ..... Applicants. Mr. Milind Jadhav with Ms. K.R. Daviervala i/b Mulla & Mulla & Craigie Blund & Caroe for the applicants. Mr. Jayesh Bhatt for Respondent No.2. CORAM: V. M. KANADE, J. DATE : 29th March, 2011 P.C.:- 1. Heard the learned Counsel for the applicants and the learned counsel for the respondent No.2. 2 (CAW530/2011) 2. By this application, the applicants are seeking restoration of the Writ Petition which was dismissed for the want of prosecution by the learned Single Judge of this Court on 11/2/2011. 3. It is submitted that the advocate handling the matter was busy in some other proceedings and, therefore, could not remain present when the matter was called out. It is submitted that immediately within a couple of days Civil Application for restoration of the Writ Petition was filed and, therefore, it is urged that the order dated 11/2/2011 may be recalled and the Writ Petition may be restored to the file. 4. On the other hand Mr Bhatt the learned Counsel appearing on behalf of respondent No.2 vehemently urged that on 14/1/2011, the learned Single Judge (Coram: D.G. Karnik, J.) had specifically fixed the matter for final hearing and the Civil Applications which were filed by him were not pressed. It is submitted that this Petition is pending since 2001 and though the matter was expedited, for one reason or the other, the matter did not reach final hearing. It is submitted that the respondent-firm has ceased to exist. Reliance is placed on number of documents and instances in support of the said submission. It is, therefore, submitted that it is not open for the applicants to file an application for restoration. It is also submitted that since the application was dismissed for want of prosecution, the said order could 3 (CAW530/2011) not be recalled and the Writ Petition cannot be restored on the specious ground that the applicants, thereafter, had given instructions to the Counsel appearing for the applicants. 5 In my view, since the application was immediately filed after the order was passed, no delay is caused in taking out this application. The learned Counsel appearing on behalf of the applicants in rejoinder has pointed out that some of the partners are alive and the right to sue exist. In my view, in the interest of justice, it would be appropriate if the order dismissing the Writ Petition for non-prosecution is recalled and the Writ Petition No.4701 of 2001 is restored to the file. The impugned order reads as under:- “Ms. Khushnuma Gazdar i/b Mulla & Mulla & Craigie Blunt & Caroe for the petitioner. Mr. Jayest Bhatt for respondent nos. 1 and 2. CORAM: D.G. KARNIK, J. DATE : 11TH FEBRUARY 2011 P.C.: 1. Learned Counsel for the petitioner submits that the petitioner has not given instructions for conducting the petition and she reports no instructions. No other advocate duly instructed by the petitioner is present. 4 (CAW530/2011) 2. The petition is dismissed for non- prosecution. Rule is discharged.” Though it is mentioned that no instructions were given, it is also observed that no other advocate duly instructed by the petitioner is present. It is submitted by the Counsel for the applicants that the applicants’ advocate who was instructed to appear was busy in arbitration proceedings on that date and, therefore, could not remain present. Therefore, it cannot be said that no instructions were given by the applicants. 6. In this view of the matter, the order dated 11/2/2011 is recalled. The Civil Application is allowed and the Writ Petition is restored to the file. 7. Civil Application Nos.1813/2001, 2108/2001 and 419/2006 which were not pressed in view of the order dated 14/1/2001 by which the Writ Petition was directed to be placed on board also, in my view, will have to be revived since the applicants herein were absent on the date on which the matter was kept for hearing. The said applications are accordingly revived. 8. Applicants shall pay the costs which is quantified at Rs 5000/- to the respondent No.2 within one week. 5 (CAW530/2011) 9. Civil Application is disposed of. 10. Place the Writ Petition on final hearing board in the week commencing from 05/04/2011. Matter be placed high on board. (V.M. KANADE, J.) 6 (CAW530/2011)