-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 279 OF 2010 IN NOTICE OF MOTION NO. 2061 OF 2006 IN SUIT NO. 3710 OF 1994 Om Realty Pvt. Ltd. ... Appellants vs. Smt. Gawarja Devi Mohta and others ...Respondents Mr. Birendra Saraf, instructed by M/s. Prakash & Co., for the appellants. Mr. D.D. Madon, Senior Advocate, along with Mr. I.M. Chagla, Senior Advocate, Mr. Chirag Balsara and Mr. Rahul M. Kadam, for Respondent Nos. 4, 6 and 9 to 12. Mr. S.M. Kazi for respondent No.5. CORAM: P.B. MAJMUDAR & ANOOP V. MOHTA, JJ. DATE: OCTOBER 07, 2010. P.C. This appeal is directed against the order passed by the learned single Judge dated 13th April, 2010 in Notice of Motion No. 2061 of 2006 in Suit No. 3710 of 1994. 2. The appellant is the original plaintiff of the aforesaid suit. The said suit was filed in 1994 seeking a decree for specific performance in connection with some oral agreement which had taken place in 1986. There is no alternative prayer for damages. The only prayer sought is for getting a decree -2- for specific performance of the alleged so-called understanding/oral agreement. After the filing of the suit, the plaintiff has failed to take out any proceedings for serving the defendants for a considerable period. The advocate for the plaintiff as well as plaintiff continued to remain absent and did not take out any proceedings for serving the defendants. The matter was placed before the Prothonotary and Senior Master for removing office objections and for the purpose of serving the defendants. On 13th August, 1999, the Director of the plaintiff, Mr. Ramchand Asrani was present and requested the Prothonotary and Senior Master to recall the earlier order by which the suit was dismissed for default for not serving the defendants. The Prothonotary and Senior Master passed the following order on 13th August, 1999. “Plaintiffs and their Advocates are again absent. There is nothing on record to show that the deft. Nos. 1 to 4 and 6 to 12 have been served with the w/s. Suit is dismissed for default and for non-prosecution. Later : Mr. Ramchand Asrani, Director of the Plffs. is present. Mr. Asrani states that the plffs. have engaged the services of M/s. A.M. & H. Shroff & Co., for the Plffs. However, he does not know whether they have or have not filed their vak. on behalf of the Plffs. He applies for setting aside the order of dismissal passed earlier. On the appln. of Mr. Asrani, order of dismissal passed earlier is set aside. Suit is restored to file. Adjd. for two weeks.” On 27th August, 1999 the Prothonotary and Sr. Master passed the following order: “Plffs. absent. Shri R. Vaghani, i/b Dhruva & Co., Advs. for defendant No.5. -3- P.C. Adjd. to 3-9-99 for dismissal”. On 3rd September, 1999, again Plaintiffs remained absent and the Prothonotary and Sr. Master passed the following order:- “Plffs. are again absent. They were absent on 27th Aug. 1999. Mr. Ranjit Waghani, Adv. i/b Dhru & Co., Adv. for Deft. No.5. P.C. Suit is dismissed for default.” 3. It is required to be noted that the plaintiffs were never interested in serving the defendants. After about five years, the plaintiffs took out Notice of Motion for restoring the suit. The learned single Judge found that the suit was filed in 1994 and was not prosecuted at all. The summons of the suit was not served upon any of the defendants. The learned single Judge has considered the conduct of the plaintiff in the order. It is required to be noted that the defendants, in the meanwhile, had transferred the property by way of registered document in favour of third party as back as in the year 2002, in view of the fact that there was no interim order against them worth the name in the suit. It is further required to be noted that there is no alternative prayer sought in the suit for damages. Under the circumstances, the learned single Judge declined the prayer made in the Notice of Motion for restoring the suit in which subsequent developments have also taken place regarding transfer of property by the defendants in favour of third parties in the year 2002. 4. We have heard the learned counsel for the parties at length. In our -4- view, the application of the plaintiff for deciding the Notice of Motion after a period of five years is an after thought. Mr. Madon, learned senior counsel, for defendant Nos. 4, 6 and 9 to 12 submits that the Director of the plaintiff is a builder well conversant with the court proceedings and he is not a layman that he may not be aware as to what has happened to the subject matter of the suit. The plaintiff was expected to know as to what has happened to the suit filed by him for all these years. It is clear that in the presence of the Director of the Plaintiff, Prothonotary and Senior Master adjourned the matter from time to time, yet no care was taken for restoring the suit. The filing of application, therefore, is nothing but an after-thought as the plaintiff has realised that the defendants have sold away the property to somebody else and, therefore, in order to take a chance or as pointed out by Mr. Madon, only to pressurise the defendants, by getting the suit restored that the Notice of Motion was filed at such a belated stage. 5. During the course of hearing, in order to find out the nature of the suit, Mr. Saraf, learned counsel appearing for the plaintiff, has fairly submitted that there is no cause of action mentioned in the suit. There is no alternative prayer for damages. The only prayer is for getting specific performance of the suit agreement. Apart from that, there is not a single statement in the plaint as to whether the suit is filed within the period of limitation as the so-called oral agreement is of 1986 and the suit is filed in the year 1994. Mr. Saraf pointed -5- out that the oral talks never culminated into any agreement between the parties. Excepting that there was some understanding of which some writing was executed which cannot be said to be an agreement to sell at all. The learned counsel for the plaintiff has fairly submitted that there was no payment towards earnest money except that a sum of Rs. 50,000/- paid for which also there is no prima facie evidence available with the plaintiff. 6. Be that as it may, in our view, the filing of the aforesaid suit is nothing but a speculative one. In view of the conduct of the plaintiff, as indicated above, in our view, such a dead horse is not allowed to stand up again and by allowing such a suit to be restored, genuine proceedings which are before this Court will be delayed. We are satisfied that the learned single Judge has rightly not restored such a suit in which even otherwise also no alternate prayer for damages. There is no merit in the Appeal. Appeal is accordingly dismissed. P. B. MAJMUDAR, J. ANOOP V. MOHTA, J.