1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1287 OF 2007 IN SUMMARY SUIT NO.756 OF 1997 WITH CHAMBER SUMMONS NO.579 OF 2007 IN SUMMARY SUIT NO.756 OF 1997 Vimalchand G. Jain Plaintiff versus Nikeshkumar Premji Visaria and another Defendants Mrs.Kalyani G. Parmar for plaintiff. Mr.M.J.Devani for defendants. CORAM : S.J.KATHAWALLA, J. DATE : 17th February 2011 PC : 1. By the above Notice of Motion No.1287 of 2007 the plaintiff has inter alia prayed that the order dated 16th November1998 dismissing the Summary Suit No.756 of 1997 be restored to file. 2. The facts in the present case are as follows. 3. The Summons for Judgment No.542 of 1997 taken out by the plaintiff in the above summary suit had appeared for hearing and final disposal before the learned Single Judge of this Court on 16th November 1998 when none appeared for the plaintiff. Normally when an interim proceeding in a suit is shown on board for hearing and if the plaintiff is not represented before the Court, the Court proceeds to dismiss such interim 2 proceeding but would not dismiss the suit itself. However, in the instant case, the Summons for Judgment as well as the Summary Suit were both dismissed by the learned Single Judge on 16th November 1998. 4. On 15th December 1998 the advocate for the plaintiff took out Notice of Motion No.3997 of 1998 for setting aside the order dated 16th November 1998 dismissing the Summons for Judgment No.542 of 1997. As stated in the affidavit in support of the present Notice of Motion, the advocate had prayed for setting aside the order dated 16th November 1998 dismissing the Summons for Judgment No.542 of 1997 but did not make any mention about the suit which was also dismissed. The said Notice of Motion was allowed in terms of prayer clause (a) on 15th September 2000 with a direction to place the Summons for Judgment No. 542 of 1997 for hearing in regular course. Neither the advocate for the plaintiff nor the advocate for the defendants realized that the Summons for Judgment No.542 of 1997 was restored to file without restoring the summary suit which was also dismissed by order dated 16th November 1998. In fact, the Summons for Judgment was thereafter once again dismissed on 23rd January 2001 and again restored on 5th November 2003. On 19th December 2006, this Court in the said Summons for Judgment granted unconditional leave to the defendants to defend the suit and also directed the defendants to file their written statement within a stipulated period. The defendants failed to file the written statement as stipulated in the order dated 19th December 2006 and therefore filed a Chamber Summons being No.579 of 2007 to allow the defendants to file the written statement and for condonation of delay in filing the same as per order dated 19th December 2006. The said Chamber Summons is also on board for hearing along with present Notice of Motion. From the affidavit-in-support of the Chamber Summons filed by the defendants it is established beyond any doubt that the defendants had even in the year 2007 not realized that the suit which was dismissed by an order dated 16th November 1998, was not restored and only the Summons for Judgment was restored. In Summons for Judgment, unconditional leave 3 was granted to the defendants to defend the suit and the defendants were directed to file their written statement without restoration of the suit. 5. Thereafter, the plaintiff had taken out Notice of Motion No.1287 of 2007 and also Chamber Summons No.765 of 2007 seeking setting aside of the order granting unconditional leave to defend the suit and seeking certain amendments to the plaint respectively. On 9th October 2009 when these proceedings were taken up for hearing before the learned Single Judge, the defendants for the first time pointed out that by an order dated 15th September 2000, this Court has restored the Summons for Judgment on file but has not restored the suit which was also dismissed on 16th November 1998. The learned Single Judge therefore adjourned the matters till 20th November 2009. 6. The present Notice of Motion was thereafter taken out on 30th October 2009, inter alia, seeking restoration of the suit on the ground that the advocate for the plaintiff had failed to realize that along with the Summons for Judgment No.542 of 1997, Summary Suit No.756 of 1997 was also dismissed on 16th November 1998. It is submitted that this was a clear mistake on the part of the advocate for the plaintiff and the plaintiff as well as his advocate and also the defendants and their advocate did not realize the same. In fact, the Summons for Judgment was once again dismissed on 23rd January 2001 and restored on 5th November 2003 and further unconditional leave was granted to the defendants to defend the suit on 19th March 2006. Even in the year 2007 the defendants and their advocate not having realized the aforestated mistake on the part of the plaintiff's advocate moved a Chamber Summons being No.579 of 2007 to allow the defendants to file their written statement and for condonation of delay in filing the same as per order dated 19th December 2006. It is therefore submitted that the suit which was dismissed by order dated 16th November 1998 be restored to file and the plaintiff not be made to suffer for the mistake on the part of his advocate, which mistake was realized by the parties only in November 2009 after which the present Notice of 4 Motion is immediately taken out. 7. Though no reply has been filed by the defendants to the present Notice of Motion, their advocate has vehemently opposed the prayers sought in the Notice of Motion on the ground that the plaintiff who has always failed to remain present by himself or through his advocate, cannot be shown any indulgence by this Court. I see no substance in the argument advanced on behalf of the defendants. As stated hereinabove, in the present case the learned Single Judge of this Court by his order dated 16th November 1998 had dismissed the Summons for Judgment and also the Summary Suit. It appears that the advocate for the plaintiff did not realize that the suit itself was also dismissed and he moved the Notice of Motion being No.3779 of 1998 for setting aside the order dated 16th November 1998 dismissing Summons for Judgment No.542 of 1997 without making any mention of the summary suit. The said Notice of Motion was allowed as prayed and the summary suit remained to be restored to the file. Though the advocate of the plaintiff was certainly negligent and at fault in not carefully going through the order dated 16th November 1998, the plaintiff who has instructed his advocate to move the Court for setting aside the order dated 16th November 1998, can in no way be held responsible for the same. In fact, as stated earlier, none of the parties realized this mistake and in the Summons for Judgment unconditional leave was granted on 19th December 2006. The defendants not having realized their mitake have also taken out a Chamber Summons being No.579 of 2007 to allow the defendants to file their written statement and for condonation of delay in filing the same as per the order of the learned Single Judge dated 19th December 2006, which Chamber Summons is also placed before me along with this Notice of Motion for hearing and final disposal. 8. When the aforestated mistake was realized in October 2009, the plaintiff has immediately taken out the present Notice of Motion to rectify the said mistake. In view thereof, this is a fit case where the plaintiff 5 should not be made to suffer for a mistake committed by his advocate and the Summary Suit No.756 of 1997 dismissed vide order dated 16th November 1998 deserves to be restored to the file. 9. I, therefore, set aside the order dated 16th November 1998 and restore the Summary Suit No.756 of 1997 and Summons for Judgment No.542 of 1997 to the file. However, unconditional leave which was granted to the defendants to defend the suit in the said Summons for Judgment No.542 of 1997 vide order dated 19th December 2006 shall continue. The Chamber Summons No.579 of 2007 taken out by the defendants is also allowed and the office is directed to take the written statement of the defendants on record. 10. Place the Summary Suit No.756 of 1997 for framing of issues on 07th March 2011. 11. Learned advocate for the defendants seeks stay of the order. The application for stay is rejected. The Notice of Motion No.1287 of 2007 and the Chamber Summons No.579 of 2007 stand disposed of. (S.J.KATHAWALLA, J.)