-1- bpk IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 15 OF 2009 IN TEST. SUIT NO. 44 OF 1983 IN PETITION NO. 37 OF 1982 Mrs. Panna A. Bhansali : Plaintiff v/s Mr. Tinoo A. Bhansali : Defendant Dr. Santosh Raje Advocate for Plaintiff Mr. Girish Desai i/b Geeta Shastri Advocate for defendant Coram : R.Y. Ganoo,J. Date : 2.4.2009 P.C. . The motion is taken out for setting aside the exparte dismissal of the suit done on 18.12.2008. Partied have completed the pleadings. I have heard learned counsel on both the sides. . Dr. Santosh Raje is learned advocate on record. The suit came to be dismissed on 18.12.2008. Affidavit in support of motion states that plaintiff left Bombay on 9.9.2008 and was at USA when the suit came to be dismissed. The affidavit in support also says that learned advocate Dr. Raje shifted his office from one building to the other and in the process he lost brief the matter. Learned advocate Raje has his affidavit in support of the notice of -2- motion. Counsel for the defendants without affidavit in reply opposed the motion by contending that the plaintiff is not interested in prosecuting the suit and her conduct if considered prior to 18.12.2008 clearly goes to show that she is not interested in prosecuting the suit. Mr. Desai counsel for the defendant vehemently opposed the motion. . In the normal course the plaintiff ought to have attended to the matter and assisted the advocate. In the present case on the day when the suit came to be dismissed plaintiff is reported to be out of Bombay. She has appears to have left Bombay by relying upon her advocate completely. Learned advocate claims that he lost his brief and as a result of that he could not keep track on the matter. Since the learned advocate who is on record on behalf of the plaintiff has filed his own affidavit contending that he missed the matter I am inclined to take linient view despite serious opposition of advocate of the defendant and restore the suit by directing the plaintiff to pay cost of Rs. 5000/- to the defendant for restoration of the motion as in my view this course will meet the ends of justice. Of course the suit would be attended to as expeditiously as possible because the defendant is senior citizen, hence the -3- order. ORDER . Motion is made absolute in terms of prayer clauses (a) and (b). . Plaintiff to pay to defendant cost of Rs. 5000/-. Cost condition precedent for further proceeding in the suit. Suit restored to file of this court and is set down for recording of evidence on 22.4.2009 on which date court will proceed to attend to the suit in accordance with the provisions of law. . After the aforesaid order is passed learned advocate Mr. Desai upon instructions states that his client will not press for receiving cost. In view of this costs are deemed to have been paid. . Adjourned to 22.4.2009 at 11.30 a.m. for recording evidence. (R.Y. Ganoo, J)