1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2240 OF 2009 IN SUIT NO. 2116 OF 2006 Mohammed Ismail Haji Noor Mohamed ...Plaintiff. Vs. Abdulkadar Haji Mohammed & Ors. ...Defendants. Mr. P.S. Dani with Mr. S. Mahajan with Mr. Parag Shelke for the Plaintiff. Mr. Pratik i/by M/s. Law Charter for Defendant Nos. 1 to 5. Ms. Pooja Parekh i/by M/s. Pravin Mehta & Mithi & Co. for Defendant No. 6. CORAM :- ANOOP V. MOHTA, J. DATED :- 4th November, 2009. P.C.- 1 The Plaintiff has taken out this notice of motion for restoration of the suit which was dismissed in default on 27th February, 2008 by the Prothonotary and Senior Master. Order dated 27th February, 2008 reads as under:- 2 “S.J./N.M./Ch.S./Appeal No. OF IN SUIT NO. 2116 OF 2006 S.A. Rodrigues prothonotary & Sr.Master Coram Dated 27-02-2008 Plaintiff and his Advocate are absent Shri N. Jain, i/b Law Charter, Adv. for Defendant No.1 to 5 Miss P. Parekh, i/b P.M. & Mithi & Co.Advocate for Defendant No.6. P.C.: The Plaintiff and his Advocate are absent today. They were absent on the earlier occasion also. There is nothing on record to show whether the Defendants have been served or not, Suit dismissed for default. In view of the dismissal of the suit N/M 2662/2006 also stands dismissed.” 2 It appears from the record itself that the defendants were present but not the plaintiff and his advocate. It also means that the defendants were served. They were fully aware of the matter besides Notice of Motion No. 2662 of 2006. The Court, after hearing the parties, had passed the order on 25th January, 2007. The Appeal against the same was also dismissed by order dated 26th March, 2007, after hearing both the parties. 3 Therefore, throughout the proceedings, the defendants were present and they were served and fully aware of the matter. The technical service of writ of summons, in my view, in the present facts and circumstances, cannot be the reason to dismiss the suit itself. That resulted into dismissal of the notice of motion along with the interim conditional order, already 3 passed by the court. 4 Considering the averments made and in view of the fact that the suit is for partition, the presence of all the parties is necessary in the interest of justice. The dismissal of the suit, in such fashion, in my view, is a great injustice to the parties. In a partition suits, all the parties are involved and affected. Therefore, the presence of the parties and decision on merit is also essential. The parties having contesting the matter throughout and having obtained the interim conditional order and practically maintained at the appellate stage and not attending the office for removal of office objection, cannot be said to be intentional. Any way, considering the averments made in paragraph Nos. 9 and 10 and in the interest of justice and as the parties cannot allow to suffer because of mistake/inaction on the part of earlier advocate and/or for want of filing of proper vakalatnama at the relevant time, because of change of advocate. The earlier advocate did not appear and that resulted into the order of dismissal. 5 The plaintiff therefore, immediately from the date of knowledge in the month of June, 2009 filed the present proceedings. This, in my view, is a sufficient reason to consider the case of the Plaintiff to restore the present suit. 6 Resultantly, the notice of motion is allowed in terms of prayer clauses (a), (b), (c) and (d). The parties are at liberty to apply for withdrawal of the said amount as per the order. 4 7 However, this is subject to costs of Rs.15,000/- (Rupees fifteen thousand only) to be paid to defendant Nos.1 to 5 as consented by defendant No.6 also within a period of 2 weeks. 8 The notice of motion is allowed, accordingly. (ANOOP V. MOHTA, J.)