1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO.2837 OF 2008 IN SUIT NO.3911 OF 1992 Omprakash Dujodwala .... Plaintiffs vs Sudhir M. Mody & 14 ors. ... Defendants Mr.H. Toor i/b. Vinod B. Singh for the plaintiffs. Mr. P.K. Samdani, Sr. Counsel i/b. Dhru & Co. for defendants 2, 4, 5, 7, 8 and 12. CORAM: ANOOP V. MOHTA, J. DATE : 18th July, 2009 P.C.: 1 The plaintiff has taken out this notice of motion for restoration of the Suit which was dismissed on 12.01.2007 as none appeared for the plaintiff and, therefore, invoked Order IX, Rule 8 of Code of Civil Procedure. 2 Considering the averments made in paragraphs 8, 9 and 10 and the objection that there are no details provided except the averments made, but in view of the fact that the plaintiff was not present on that date and the adverse averments made are against the erstwhile Advocate, the non-communication and/or inaction on the part of the Advocates, in no way should affect the rights of the parties. 3 Admittedly, the plaintiff was not present in the court when the suit was dismissed. It also means that on that day, the Advocate for the plaintiff was also not present in a Suit which was pending since 1992. The stages so referred in the 2 affidavit in paragraph 2 itself shows that it took long time to the matter to be on board. Therefore, merely because on earlier occasion also the Suit was dismissed that itself cannot be the reason not to consider the case based upon the order of dismissal dated 12.01.2007. 4 If the absence of the plaintiff on that day was the reason to dismiss the Suit that in my view cannot be the ground not to restore the Suit, in view of the averments made in the present matter. In Ashok Ravji Vadodriya and etc. v. Municipal Corporation of Greater Bombay, AIR 2004 Bombay 8, this Court has already observed that “It is the duty of lawyer to attend proceedings and take dates. The plaintiff should not suffer for the default of the Advocate or its clerk.” If advocate fails to appear the plaintiff/the parties cannot be held responsible for their default. A sufficient cause is made out for restoration on that ground itself. (AIR 2009 S. C. 1640-Raj Kishore Pandey v. State of U.P. & ors.) 5 I am declined to accept the submission that the concerned Advocate or its clerk should have been made party. The averments as it stands, in my view, are sufficient to consider the case of the plaintiff who was definitely not present on that date. Even this controversy will not help the plaintiff who has suffered this order of dismissal. 6 Resultantly, in the interest of justice, this motion is allowed in terms of prayers (a) and (b). However, this is subject to cost of Rs.10,000/- to be paid within ten days as a condition precedent. 7 The Suit be listed for directions after four weeks. (ANOOP V. MOHTA, J.)