1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.2876 of 2004 In Appeal No.943 of 1998 In Notice of Motion No.2189 of 1994 In Suit No.1411 of 1976 Mahendra Chimanlal Shah Applicant Vs. Panalal Bhikabhai Shah & ors. Respondents Mr.V.A.Gangal with Mr.Ashok Gade i/b. Mr.V.M.Parkar for applicant. Mr.M.Shirazi with Mr.Misquitta i/b. M/s.Eastley Lam & Co. for resp.nos.1 to 8. CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. January 22, 2010. P.C. 1. Heard Mr.Gangal, the learned counsel for the applicant who is the 2 plaintiff in Suit No.1411 of 1976 filed before this Court. The said Suit was dismissed as abated on 9/6/1992 and, therefore, Notice of Motion No.2189 of 1994 came to be filed for restoration of the Suit and it was dismissed on 6th August 1998. Being aggrieved by the said order passed by the trial Court, Appeal No.943 of 1998 came to be filed and when it reached for final hearing on 7/10/2002 none was present for the appellant – plaintiff and consequently it was dismissed for default on the same day. Hence this Notice of Motion for restoration of Appeal No.943 of 1998 which was dismissed for default on 31/3/2008. However, by allowing Notice of Motion No.1693 of 2008 it came to be restored as per the order dated 29/8/2008. 2. It was argued by Mr.Gangal that the Advocate engaged by the plaintiff did not remain present before the Court on 7/10/2002 when the Appeal was listed and on its dismissal in default, the learned Advocate did not give any intimation to the plaintiff. Hence he could not approach the Court in time for restoration of the appeal. He applied for a certified true copy on 5/7/2004 of the order dated 7/10/2002 and the same was supplied to him on 1/9/2004. This Notice of Motion has been filed on 29/9/2004. As per the applicant, the learned Advocate engaged by him had initially 3 stated that his name was not shown on the board when the appeal appeared before the Division Bench on 7/10/2002 and, therefore, he had no intimation. However, the applicant went through the old record and noticed that the name of the Advocate was shown on the board and he did not remain present. The applicant’s complaint against the said learned Advocate is already pending with the Bar Council of Maharashtra and Goa. Mr.Gangal, therefore, submitted that for the fault and negligence of the learned Advocate engaged by the applicant, he should not be allowed to suffer and it would be just and proper to restore the appeal by allowing this Motion. 3. The learned counsel for the respondent nos.1 to 8 has opposed the Motion. It was submitted by him that the order of dismissal of the suit passed on 26/3/1992 has not been challenged and the suit does not survive. We are not impressed by these arguments. Notice of Motion No.2189 of 1994 was filed for restoration of the said Suit by setting aside the order of dismissal passed on 26/3/1992 and the said Notice of Motion was rejected on 6/8/1998 which is the subject matter of challenge in the appeal. 4. When it comes to restoration of a lis on account of its dismissal for 4 non-prosecution or for any other reasons attributable to the Advocate appearing for the parties, though that alone cannot be a reason, the Court must show some leniency and the parties should not be allowed to suffer any prejudice so as to defeat their legal claims only on account of such technicalities. We do not see any element of negligence or casualness that has been pointed out as attributable to the plaintiff in filing this Notice of Motion for restoration of the appeal and, therefore, appeal deserves to be restored but by imposing heavy costs. 5. Hence the Notice of Motion is allowed in terms of prayer clauses (a) and (b) subject to the applicant paying costs quantified at Rs.50,000/- (Rupees fifty thousand only). The costs amount shall be remitted with the office of this Court within a period of two weeks from today and thereafter it will be allowed to be withdrawn by the contesting respondents. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE,J.)