1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.20 OF 2009 WITH CIVIL APPLICATION NO.19 OF 2009 Haji Karim Mohammed Suleman ..Appellant V/s The Municipal Corporation of Greater Mumbai ..Respondent Mr.A.S.Malvankar, Advocate, for the appellant Ms.K.K.Soraan, Advocate, for the MCGM CORAM : R.M.SAVANT, J. DATE : 9TH JANUARY, 2009 P.C. . This appeal can be conveniently disposed of at the admission stage. The appeal arises out of the Order dated 31st December, 2008 passed by the learned Judge of the City Civil Court by which order the Notice of Motion filed by the appellant/original plaintiff for restoration of the suit came to be rejected. 2. It is the case of the plaintiff that he had gone to his native place on account of some property dispute and therefore, had to remain there for a substantially long period. He was one of the 2 persons looking after the affairs of the plaintiff-trust. The papers of the above suit were in his custody and the said papers were not available to him. On 16th October, 2008 when the suit was on board the advocate for the plaintiff had sought time which was refused. After the suit came to be dismissed, the advocate for the plaintiff informed the plaintiff and since the plaintiff was at his native place, filing the Notice of Motion took some time and therefore, there is a delay of 38 days in filing the same. 3. The Trial Court considering the reasons cited by the plaintiff for his non-appearance on 16th October, 2008 and considering the noting on the Roznama wherein the plaintiff is shown as absent on various dates from 16th July, 2007 did not deem fit to condone the delay and grant the Notice of Motion. Since the plaintiff did not remain present on 16th October, 2008, the suit came to be dismissed. The Trial Court was of the view that the case made out by the plaintiff was unacceptable. 4. Having considered the reasons cited by the plaintiff in the application for restoration and for condonation of delay, in my view no 3 doubt there is a default on the part of the plaintiff, however, the plaintiff is to be given one last opportunity to prosecute the suit as the plaintiff is a trust and the building in question in respect of which the notice has been given is used for the purposes of school. 5. The above Appeal from Order is, therefore, allowed. The impugned Order dated 31st December, 2008 is set aside. The Notice of Motion filed for restoration accordingly stands allowed. The suit is restored to file. On such restoration, the Trial Court to fix the date for examination and cross-examination of the plaintiff as per its convenience. The plaintiff to pay costs of Rs.3000/- to the respondent-Corporation which is over and above the costs directed to be paid by the Trial Court. (R.M.SAVANT, J.)