- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 345 OF 2009 Mrs. Kalyani Umesh Mhatre & Anr. ... Appellants Vs. Mr. Satish R. Patke ... Respondent Mr. Manoj P. Mhatre, for appellants. Mr. P. M. Havnur, for respondent. CORAM : R. V. MORE, J. DATE : JUNE 9, 2009. PC :- 1. Admit. By consent of the parties, appeal is taken for final hearing. Heard the learned counsel for the appellants and the respondent. The appellant is challenging the order of City Civil Judge, Dindoshi, Greater Mumbi, passed in Notice of Motion (below Exhibit 7) in S.C. Suit No. 4559 of 2006, whereby the appellant’s Notice of motion (Exhibit 7), filed for restoration of - 2 - Notice of Motion No. 4090 of 2006 and Chamber Summons No. 808 of 2007 came to be dismissed. 2. The facts giving rise to present appeal in brief are as under- 1. The appellants are the original plaintiffs. They filed S.C. Suit No. 4559 of 2006 against the respondent, restraining him permanently in using and/or dealing with power of attorney, any unregistered writing, signed by appellant/plaintiff No.1 and/or appellant/plaintiff No.2 and defendant/respondent and/or anyone else including deceased father of appellants in respect of any property situated at village Kaneri, in survey No. 62, Hissa No.3, Taluka Borivali, Boeicali (E), Mumbai and property situted at village Mulgaon, bearing CTS No. 3328, 3329, 3330 at Vasai, District Thane and/or any other property, in which appellant No. 2 is having undivided share with the respondent. 2. The appellant filed Notice of Motion No. 4090 of 2006 for temporary injunction in terms of permanent injunction claimed in the suit and the Chamber Summons No. 808 of 2007 for - 3 - bringing subsequent events on record. 3. So far as Notice of Motion is concerned, ad-interim relief is granted in favour of the appellants. It is case of the appellant that his advocate expired on 19th January 2008 and therefore, on 30th January 2008 on the date on which the above said said Notice of Motion and Chamber Summons were on the board before the trial Court, the appellant No. 2 informed the Court about demise of their advocate and prayed for time to appoint new advocate. On the request of appellant No.2, the above Notice of Motion and the Chamber Summons were adjourned to 24th April 2008. On 24th April 2008 since the appellant No.2 could not remain present, the above Notice of Motion and the Chamber Summons came to be dismissed in default. The appellant thereafter preferred Notice of Motion at Exhibit 7 for restoration of Notice of Motion No. 4090 of 2006 and Chamber Summons No. 808 of 2007 which came to be dismissed by the impugned order. He further submitted that appellants have shown sufficient cause for their absence when the Notice of Motion and the Chamber Summons were called on 24th April 2008 and therefore, in the interest of justice, the said - 4 - Notice of Motion No. 4090 of 2007 and the Chamber Summons No. 808 of 2007 deserves to be restored. 4. The learned counsel for the respondent, per contra supported the impugned order. He submitted that the reasons given by the appellant for restoration of above Notice of Motion and the Chamber Summons cannot be said to be sufficient. He also submitted that there is no evidence in support of appellants’ contention that on 24th April 2008 the appellant could not attend the proceeding as he was not well. 5. Having heard the learned counsel for the respective parties and having gone through the impugned order, I find merit in the appeal. There is no dispute that the appellant could not remain present on 24th April 2008 when the above Notice of Motion and the Chamber Summons were called out. It is submission of the appellant that therein lawyer expired on 19th January 2008 and on 30th January 2008 they pointed out the said fact to the Court and got adjourned the above proceedings to 24th April 2008. They also submitted that on 24th April 2008 appellant No.2 was not well and - 5 - therefore he could not attend the proceedings. It is specifically submitted that appellant No.1 is wife of appellant No.2 and she never attended the Court and appellant No.2 alone was attending the Court. 6. The appellant No.2 has produced documentary evidence to show that he was hospitalized for a period between 22nd to 28th May 2008 and 9th to 14th June 2008. In the above facts and circumstances, in my view appellants’ statement, supported by affidavit that he was not well on 24th April 2008, deserves to be accepted. 7. Be that as it may. The learned trial Judge himself observed in the impugned order that the appellant No.2 has attended all material dates except the solitary date i.e. 24th April 2008. The findings show that appellants were diligently prosecuting the proceedings and they were never negligent. Taking totality of the circumstances into consideration, I am of the view that the appellants have given sufficient cause for restoration of the said Notice of Motion No. 4090 of 2006 and Chamber Summons - 6 - No. 808 of 2006. Appeal therefore, succeeds. The impugned order is quashed and set aside. The appellants’ Notice of Motion at Exhibit 7 in S. C. Suit No. 4559 of 2006 is allowed. However, the appellants shall pay costs of this appeal to respondents, which is quantified at Rs.2,500/-. Sd/- [ R. V. MORE, J.]