rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO.143 OF 2008 NOTICE OF MOTION NO.143 OF 2008 NOTICE OF MOTION NO.143 OF 2008 IN IN IN TESTAMENTARY SUIT NO.29 OF 2004 TESTAMENTARY SUIT NO.29 OF 2004 TESTAMENTARY SUIT NO.29 OF 2004 IN IN IN TESTANENTARY PETITION NO.116 OF 2001 TESTANENTARY PETITION NO.116 OF 2001 TESTANENTARY PETITION NO.116 OF 2001 Vrajeshkumar P.Morarji & Anr. .. Plaintiffs V/s. Damayanti D.Sampat & Ors. .. Defendants Ms.Sheetal Chhabria i/b.Advocate for the Petitioner. Mr.A.Khare i/b.Mr.Amit Karkhanis for the Defendants. CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. DATED : 30TH JANUARY, 2009 DATED : 30TH JANUARY, 2009 DATED : 30TH JANUARY, 2009 P.C.:- P.C.:- P.C.:- . This is a motion by the Plaintiff for restoration of this Testamentary Suit. It is stated in the affidavit in support that the Petition was filed for letters of administration with will annexed to the property of the deceased who died on 28th June, 1979 at Mumbai. 2. The citation was served on the Defendants and after caveat was filed, the matter was converted into ( 2 ) Testamentary Suit. 3. One S.P.Siyall was engaged as an Advocate for the Plaintiff. He was not keeping good health and not regularly attending the office. The matter was placed before this Court on 6th December, 2007, but none appeared on Plaintiffs’ behalf and that is how the suit was dismissed. 4. After setting out the details of other proceedings, it is contended that the other matters were placed before this Court on 23rd October, 2008. The present advocate of the Plaintiff informed the Plaintiff that their earlier Advocate had expired some time in May, 2008. The details of the information made available by the present Advocate are disclosed in paragraph 8 to 10 of the affidavit in support. In such circumstances and by contending that the Plaintiffs need not be penalised for the inability of their earlier Advocate to attend the matter, it is prayed that delay be condoned and the motion be allowed. ( 3 ) 5. On the other hand, it is contended by the Defendants that the application made is not bonafide in as much as the matter had appeared before this Court on two or three occasions, but non appeared on behalf of the Plaintiffs. Further, the Plaintiffs are contesting the other proceedings and therefore they are aware that the present suit is placed on board. It is stated that the present Notice of Motion is time barred. There is no explanation, much less, bonafide and genuine, for the Plaintiffs inability to attend the Court on the relevant date. For all these reasons and considering the conduct of the Plaintiffs, it is prayed that this Motion may be dismissed. 6. After perusing the notice of motion and the affidavit in support and the reply, in my view, it is undisputed that the matter is dismissed in default by this Court. The Plaintiffs’ Advocate was absent on the relevant date. The Plaintiffs’ Advocate has expired subsequently. The Plaintiffs’ have stated that he was unwell and not regular in attending the Court. Therefore, they did not receive proper information. While, it is true that the Plaintiffs ( 4 ) also were duty bound to attend the Court and keep a track of the proceedings, yet, it is not as if the Plaintiffs have failed to make out a case for restoration. The pleas raised in the affidavit in reply essentially touch the merits of the controversy. The Plaintiffs must be given an opportunity to proceed with the Testamentary Suit and if they fail to prove their case on merits, then all consequences follow. However, it would not be just, fair and proper to deprive them of the said opportunity. 7. Resultantly, the delay in making the application for restoration is condoned subject to Plaintiffs paying costs quantified at Rs.2,500/- to be paid to the Defendants. 8. Notice of Motion is made absolute in terms of prayer clauses (a) and (b). Costs to be paid within two weeks. (S.C.DHARMADHIKARI, J.) (S.C.DHARMADHIKARI, J.) (S.C.DHARMADHIKARI, J.)