: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1060 OF 2008 ALONGWITH CIVIL APPLICATION NO.1297 OF 2008 Chamathu Shivram Shetty .. Appellant V/s. Mumbai Metropolitan Regional Development Authority .. Respondents Mr. A.M. Saraogi for the Appellant. Mr. K.S. Patil for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATED : 20 TH JANUARY, 2010. P.C.: 1. The Appeal from Order has been preferred against the order dated 18th September, 2008, passed by the Ad-Hoc Judge of the City Civil Court, Mumbai, in Notice of Motion at Exhibit-2 in L.C. Suit No.2121 of 2008. The Suit filed by the appellant has not been restored by the City Civil Court. 2. The appellant had filed the Suit for a declaration that he was in possession of the suit premises. The Notice of Motion taken out by the : 2 : appellant was dismissed on 26th December, 2007. It appears that a writ of summons was issued on 8th January, 2008. The board was discharged for want of time by the Court on six occasions from 8th February, 2008 to 10th July, 2008. On 12th August, 2008, it appears that both the parties and their respective Advocates were absent. Thereafter, the Court passed an order rejecting the Notice of Motion since the parties had not taken any steps towards the progress of the Suit from 8th February, 2008. The Suit was dismissed by the Court on the ground that it appeared that the appellant- plaintiff was not interested in proceeding with the Suit. An application was made by the appellant on 18th September, 2009 for restoration of the Suit. That application has been dismissed on the ground that the Roznama revealed that the appellant- plaintiff and his Advocate were absent from 8th January, 2008 when the interim relief was refused, till the Suit was dismissed. The other reason for rejecting the Notice of Motion is that the appellant-plaintiff had obtained alternate accommodation as per the Roznama. : 3 : 3. In my view, the reasons given by the learned Judge for not restoring the Suit are untenable. A perusal of the Roznama indicates that after issuance of the writ of summons on 8th January, 2008, the matter was adjourned on several dates as the Board was discharged by the Court for want of time. It was only on 12th August, 2008, that the matter was taken up for hearing. On six occasions prior to this date, the board was discharged and, therefore, the question of placing the blame on the parties for not progressing with the Suit does not arise. In my opinion, the dismissal of the Suit on that ground itself was incorrect. It is true that on the date the Suit was dismissed, neither the appellant nor his Advocate were present. However, the appellant has indicated in his affidavit in support of the Notice of Motion that he had been vigilant all throughout and that he should not be penalized for the fault, if any, of his Advocate. 4. The impugned order is set aside. L.C. Suit No.2121 of 2007 is restored to file on condition of : 4 : payment of costs of Rs.3,000/- by the appellant to the respondents. The costs to be paid within a period of two weeks from today directly to the respondents. Costs condition precedent. 5. The Appeal from Order is disposed of. 6. In view of the above, Civil Application No.1297 of 2008 pending in the Appeal from Order does not survive and the same is dismissed. .......