IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2182 OF 2008 NOTICE OF MOTION NO. 2182 OF 2008 NOTICE OF MOTION NO. 2182 OF 2008 IN IN IN ABRITRATION PETITION NO. 445 OF 2007 ABRITRATION PETITION NO. 445 OF 2007 ABRITRATION PETITION NO. 445 OF 2007 Hathway Cable and Datacom Private Limited & Anr. ...Petitioners V/s. Mr.Deep Chandra Dixit & Anr. ...Respondents Mr.S.U. Kamdar with Mr.H.N. Thakore i/b. M/s.Thakore & Jariwala for the Applicants/Petitioners. Mr.V.R. Dhond with Mr.S.V. Kadam i/b. M/s. Kadam & Co. for the Respondents. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : JULY 18, 2008 DATED : JULY 18, 2008 DATED : JULY 18, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Shri Kamdar, learned Senior Counsel appearing on behalf of the petitioners and Shri Dhond, learned Counsel appearing on behalf of the respondents. 2. This Notice of Motion is taken out by the petitioners seeking restoration of the Notice of Motion which was dismissed for want of prosecution by this Court by order dated 3rd June, 2008. Arbitration Petition was filed in this Court on 29th October, 2007. - 2 - It is an admitted position that this petition was not served on the other side when the matter appeared on board on 3rd June, 2008. The petitioners’ Advocate sought time, however, adjournment was not granted and the learned Single Judge was pleased to dismiss the Motion by passing the following Order :- "Mr.Daver reports no instructions. Petition is dismissed for non prosecution." 3. Thereafter, the present Notice of Motion was filed and the respondents were served with the copy of the Arbitration Petition and Notice of Motion on 16th June, 2008. The said Motion was again circulated before the learned Single Judge on 24th June, 2008 when the following order was passed :- Today, Removed from Board.". 4. Learned Senior Counsel appearing on behalf of the petitioners submits that after examining the facts and circumstances of the case after the petition was - 3 - filed, he realised that possibly this Court may not have jurisdiction to try and decide the petition which was filed under Section 9 of the Arbitration Act. He has sought instructions from his client. When the matter appeared on board on 3rd June, 2008, no instructions were received from his client and therefore, the learned Single Judge did not grant an adjournment and dismissed the petition for want of prosecution. He submits that he has now received instructions that if the petition is restored, he would like to withdraw the petition and file a fresh petition before the appropriate forum. He submits that when an order is passed dismissing the petition for want of prosecution, it is deemed to be an exparte order and the Court has power to restore the petition under the provisions of Order IX Rule 29. In support of the said submission, he has relied on the judgment of the Apex Court in the case of Malkiat Singh Malkiat Singh Malkiat Singh and another Vs. Joginder Singh and others, reported in and another Vs. Joginder Singh and others, reported in and another Vs. Joginder Singh and others, reported in AIR 1998 SUPREME COURT 258. AIR 1998 SUPREME COURT 258. AIR 1998 SUPREME COURT 258. 5. Mr.Dhond, learned Counsel for the respondents, on the other hand, submitted that though across the bar - 4 - it is submitted that no instructions have been received, in the affidavit in support of the Notice of Motion in para 5, a different ground has been taken. He invited my attention to the averment made in para 5 of the affidavit in support. He submitted that the petitioners had not served the respondents for a period of more than eight months and therefore, the learned Judge was justified in dismissing the petition for want of prosecution and this was not a fit case for restoration of the petition. 6. It is a settled position in law that when a petition or a suit is dismissed for want of prosecution, the effect of the said order is in reality an exparte order and such order can be set aside under the provisions of Order IX Rule 13. The ratio of the judgment in Malkiat Singh (supra) Malkiat Singh (supra) Malkiat Singh (supra) clearly applies to the facts and circumstances of the present case. 7. It is no doubt true that the statements which are made across the Bar and the averments which are taken in the affidavit in support do not tally and there - 5 - is a contradiction in the submissions made across the Bar and the averments made in the affidavit in support. Be that as it may, the fact remains that the petitioners wanted to take adjournment on mere ground and the said adjournment was refused and the petition was dismissed for want of prosecution. Sufficient cause has been shown by the petitioners in either case. The submission made by the petitioners will have to be accepted. Order dismissing the petition is recalled. Notice of Motion is allowed in terms of prayer clause (a). 8. Learned Senior Counsel appearing for the petitioners thereafter submits that the petitioners be permitted to withdraw this petition with liberty to file a fresh petition before the appropriate forum. 9. Petition, accordingly, is allowed to be withdrawn with liberty as prayed. The petitioners, however, are directed to give atleast two weeks clear notice to the respondents after the fresh petition has been filed before the appropriate forum. - 6 - 10. Counsel for the petitioners seeks permission to withdraw Notice of Motion No.2088/2008. Notice of Motion is allowed to be withdrawn and disposed of as such. 11. All contentions raised by both the parties, however, are kept open. 12. Petition is disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)