: 1 : nms-376-10=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 376 OF 2010 IN SUIT NO. 3280 OF 2004 Mr. Constance Rodrigues & Anr. .. Plaintiffs v/s. Ryan Rodrigues .. Defendants ......... Mr. L.H. Patil for the plaintiff nos. 1 and 2 in support of NMS Mr. B.G. Saraf for defendant no.2 None for defendant no.1. ......... CORAM : R.Y.GANOO, J. DATE : 26th NOVEMBER, 2010 P.C. : 1. Heard learned Counsel on both sides. Affidavit-in-reply filed by learned Counsel for the defendants is taken on record. By order dated 26th February 2008, this suit came to be dismissed. There is a delay of 1257 days. By prayer clause (a) said delay is sought to be condoned. By prayer clause (b) order dated 26th February, 2008 is sought to be quashed and set aside. 2. Perused the order dated 30th September, 2008. It goes to show : 2 : nms-376-10=.sxw that nobody appeared before the Prothonotary and Senior Master on 30th September, 2007, 25th October, 2010 and 26th February, 2008. The official assignee who was then incharge of the matter dismissed the suit on the ground that affidavit proving service is not filed by the plaintiffs. 3. An effort was made to know from learned advocate for the plaintiffs as to whether in fact writ of summons was served upon the defendants. The answer is in the negative. An enquiry was made as to whether what steps have been taken to serve the writ of summons by the plaintiffs. No satisfactory answer is given. Learned Counsel Mr. Patil submitted that advocate who was then appearing expired in 2007. This will mean that when the suit came to be filed in the year 2004, from 2004 to 2007 no effective steps were taken to serve the writ of summons upon the defendants. If this is the situation, conduct on the part of the plaintiffs is clearly manifested that the plaintiffs are negligent in attending to the matter. Some explanation was sought to be given by learned Counsel Mr. Patil that plaintiff no.1 was residing in Goa and plaintiff no.2. was in abroad. Surely, this cannot be explanation for not attending to the matter as the plaintiffs instructed him to take necessary steps and if required, they can come to Bombay. It is to be noted that the plaintiffs have in the suit prayed for a sum of Rs.10 lakhs : 3 : nms-376-10=.sxw by way of damages. Certainly, if a person was interested in recovering Rs.10 lakhs his conduct should have been such that he should have attended to the matter promptly. In the absence of appropriate steps as mentioned above to serve the writ of summons, plaintiffs are not entitled to relief sought for. In my view, no case is made out for restoration of the suit and the motion is required to be dismissed by passing following order. ORDER (i) Notice of motion is dismissed. There shall be no order as to costs. (R.Y.GANOO, J.)