SSM 1 20.wp.9618.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9618 OF 2010 Abdul Naeen Shaikh ....Petitioner Versus The Municipal Corporation for Greater Mumbai and others ....Respondents _____ Mr. M. S. Menon, for the Petitioner. Mr. S. Shamim, for Respondent No. 2. CORAM: B. R. GAVAI, J. DATED : 23 rd FEBRUARY, 2011. P.C.: Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present Petition, the Petitioner challenges the order dated 9 th August, 2010, vide which Notice of Motion No. 1587 of 2009 in Long Suit No. 320 of 2008 for restoration of the suit which was dismissed for default, came to be rejected. 3. The Petitioner has filed a suit for declaration and injunction. It appears that the said proceedings were adjourned from SSM 2 20.wp.9618.10 day to day. When the matter was fixed on 31 st July, 2009, the Plaintiff was absent, but was represented by his Counsel. However, taking into consideration the objection of the Defendant No. 2 that the matter was adjourned on earlier occasion, an amount of the Petitioner being absent, the suit came to be dismissed for default. Subsequently, the Notice of Motion was taken out by the present Petitioner for setting aside the order dated 31 st July, 2009 and for restoration of the suit and also for condonation of delay in filing application. The same is rejected. Hence, the present Petition. 4. The learned Counsel for the Petitioner submits that the Petitioner was prevented from appearing on 31 st July, 2009 as he had gone to Ajmer to perform religious ceremony and got unwell there. He submits that immediately after coming back from Ajmer in the first week of October, 2010, the Notice of Motion was taken out. He submits that in the interest of justice, the learned Trial Court ought to have allowed the Notice of Motion. SSM 3 20.wp.9618.10 5. The learned Counsel for the Defendant / Respondent No. 2 vehemently oppossess the Petition. He submits that the Petitioner has not made out any case for condonation of delay. It is submitted that the Petitioner has constantly remained absent and as such no indulgence is warranted in the present case. 6. It can clearly seen that when the suit was fixed on 31 st July, 2009, though the Plaintiff was absent, his Counsel was very much present in the Court. On the said date, the Counsel for the Plaintiff had sought an adjournment. However, taking into consideration the resistance on behalf of the Respondent No. 2, the suit came to be dismissed. The reason given in the Petition for restoration is that the Petitioner was away in Ajmer for performing the religious ceremony. I find that interest of justice would be sub served if the parties are permitted to get the dispute decided instead of closing the doors of justice for the Petitioner on technical ground. In so far as the prejudice that is caused to the Defendant No. 2 is SSM 4 20.wp.9618.10 concerned, the same can be compensated by saddling costs. The learned Counsel for the Petitioner has made a categorical statement that the Plaintiff would hereinafter regularly attend the proceedings before the Trial Court and would not seek adjournment on any ground. 7. In that view of the matter, I am not inclined to allow the Petition. Rule is, therefore, made absolute in terms of prayer clause (b). However, the same shall be subject to the costs of Rs.25,000/- which is to be payable by the Petitioner to the Defendant No. 2. Costs be deposited in the Trial Court within a period of four weeks from today. On deposit of costs, the Defendant No. 2 would be at liberty to withdraw the same. If the Petitioner fails to deposit the costs as aforesaid within stipulated period, the Petition will automatically stand dismissed without further reference to the Court. (B. R. GAVAI, J.)