MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 653 OF 2009 IN SUIT NO. 1378 OF 1982 Bhartiben T. Motta ...Plaintiff Vs. Kishore M. Shah & Ors. ...Defendants Mr. A. Dasgupta, Advocate i/b. Jahangiani Narula & Asso., for Plaintiff Mr. D.H. Mehta with Mr. Y.R. Shah for Defendants 1A, 1C, 3 & 4 CORAM : SMT. ROSHAN DALVI, J. DATED : 22ND MARCH, 2010 P.C. : 1. The Plaintiff has sought to set aside the order dated 18th November 2008 of my brother Judge Mr. R.M. Sawant dismissing the Suit for default. The Plaintiff’s Suit filed in 1982 remained on board until 18th November 2008 when it stood dismissed. The Plaintiff had not prosecuted the Suit in those years. The Plaintiff’s Advocates appears to have written several letters to obtain instructions on 3rd February 2005. The last letter was sent by the Plaintiff’s Advocates stating that it was not possible for them to continue to act by them and intimating the Plaintiff that they would obtain discharge. This was sent by speed-post. The Plaintiff acknowledged receipt of the letter at the address of the Plaintiff mentioned in the plaint. The Plaintiff did not respond. The Plaintiff’s Advocates followed the due procedure under the Rules of this Court and obtained discharge from the Prothonotary & Sr. Master after intimating the Plaintiff in that behalf. 2. After considering these aspects the Suit came to be dismissed for want of prosecution and for default of appearance of the Plaintiff. 3. It is the Plaintiff’s case that she had employed an employee to look after the matter. He expired on 23rd June 2007. The matter was not looked after and accordingly the Suit was dismissed less than a month thereafter on 18th November 2008. The excuse is incorrect. The Plaintiff has not shown how the Suit was not prosecuted in the years prior to the death of the employee. The Plaintiff has not shown when the employee was appointed and what authority he had which was made known to the Plaintiff’s Advocates. The Plaintiff received the last letter of the Plaintiff’s Advocates by speed-post and acknowledged it at her residential address. She, therefore, had noticed at least from February 2005. 4. The Suit deserved to be dismissed. 5. The Notice of Motion is dismissed. (SMT. ROSHAN DALVI, J.)