: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2040 OF 2009 IN SUIT NO.2110 OF 2006 Tehmton Rustom Irani .. Plaintiff v/s. Boman Rustom Irani .. Defendant ......... Mr. Irani i/by Y.R. Shah for the plaintiff Mr. G.V. Bhagwat i/by Divekar & Co. for the defendant ......... CORAM : R.Y.GANOO, J. DATE : 20TH APRIL, 2010. P.C. : 1. By this motion, plaintiff wants that order dated 2nd September, 2008 passed by Prothonotary and Senior Master dismissing the suit be set aside and the suit be restored to the file. By prayer clause (b) delay of 249 days in taking out the notice of motion is prayed to be condoned. No affidavit in reply is filed to this notice of motion though defendant is served. Heard learned advocates on both sides. Learned advocate for the plaintiff submitted that as the learned advocate for the plaintiff then appearing, did : 2 : not take any action to attend to the matter and it is only when the plaintiff looked into, he came to know that the suit has been dismissed. 2. Learned advocate for the defendant vehemently opposed the motion orally by contending that the plaintiff was at fault and it was his responsibility to see that the suit is properly attended to by the advocate. This submission has some force, at the same time, once a party engages a lawyer, party reposes confidence in the said lawyer and waits for the said lawyer to attend to the matter. If the said lawyer has failed in attending to the matter, for the negligence on the part of the advocate, the party should not suffer. 3. It is also to be noted that the plaintiff has instituted this suit to have a share in that property, which according to him he is entitled to succeed as heir of Rustom Irani and on account of legacy granted in his favour pursuant to the Will executed by Mrs. P.R. Irani. If this is the nature of the claim, the plaintiff will have to be given relief in the persent notice of motion. Of course, by putting to terms and in my view, looking to the stake involved in the matter, the plaintiff can be directed to pay a cost of Rs. 15,000/- for restoration of the suit. Hence, the following order to dispose of the notice of motion. : 3 : ORDER (i) The motion is made absolute in terms of prayer clause (a). (ii) Plaintiff to pay to the defendant a sum of Rs.15,000/- by way of costs on or before 6th May, 2010. If costs are not paid as aforesaid, the suit shall stand dismissed without further orders from the Court. Suit to come up on board in usual course. [R.Y.GANOO, J.]