-: 1 :- SPB IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2606 OF 2008 IN SUIT NO. 1816 OF 1989 Xaviers Hillary Geoffrey Almeida & Anr. .. Plaintiffs. V/s. Mrs. Maria Felinta Viola Rodrigues & Ors. .. Defendants. --- Mr.Vishal Kandade a/w. M.S.Dehlvi i/by Negandhi Shah & Mimaytullah for the plaintiffs. Mr.R.S.Tripathi for the defendants nos.3 and 5 to 7. --- CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. DATED : 21ST OCTOBER, 2008. DATED : 21ST OCTOBER, 2008. DATED : 21ST OCTOBER, 2008. P.C. : P.C. : P.C. : . Heard the learned counsel appearing for the plaintiffs in support of the notice of motion and heard the learned counsel appearing for the defendants nos.3,5,6 and 7. 2. The learned counsel appearing for the plaintiffs states that the first defendant has expired and that the second and fourth defendants have been served with the notice of motion. He states that the fourth defendant has been served by affixing. He states that an affidavit -: 2 :- of service will be filed within a period of two weeks from today. 3. The prayer in this notice of motion is for restoration of the suit which was dismissed for non-prosecution. On 20th November, 2007 when the suit appeared on board, the plaintiffs were directed to personally remain present for examination before framing of issues. On 27th of NOvember, 2007 none appeared for the plaintiffs and hence the suit was dismissed for want of prosecution. 4. The learned counsel appearing for the plaintiffs has invited my attention to the averments made in affidavit in support of the first plaintiff and in particular paragraphs 2 to 7 thereof and submitted that there was sufficient cause which prevented the plaintiffs from remaining present before this court on that date. He states that the delay has been explained in the said affidavit in paragraphs 8 and 9. 5. The learned counsel appearing for the defendants nos. 3, 5,6 & 7 opposed the prayer for restoration and for grant of interim relief prayed for in the notice of motion. -: 3 :- 6. After having considered the submissions and what is stated in the affidavit in support, I find that a case of restoration of the suit is made out. The learned counsel for the plaintiffs pointed out that the plaintiffs gave discharge to their earlier Advocate and the new Advocate engaged by the plaintiffs while filing Vakalatnama committed inadvertent error while mentioning the year of the suit on the Vakalatnama. By mistake year of the suit was mentioned as 1992 on the Vakalatnama. He stated that as in the Vakalatnama the said inadvertent error crept in, the appearance of the Advocate appearing for the plaintiffs was not shown on the date on which the suit was set down on the Board. In paragraphs 8 and 9 of the affidavit in support of the plaintiff, the plaintiffs have explained the delay. Therefore, a case is made out for condonation of delay and for restoration of the suit to file. 7. There was an interim order passed in the notice of motion No.2089 of 1991 which was operating till the disposal of the suit. In view of the restoration of the suit, the said order will have to be restored. A grievance was made by the learned counsel appearing for the aforesaid defendants that though the Court Receiver has collected rent in terms of the interim order, the property taxes and outgoings have not been paid. Hence, -: 4 :- I pass the following order : ORDER ORDER ORDER i. Notice of motion is made absolute in terms of prayer clauses (a) to (c). ii. The suit shall be set down for framing of issues on 25th of November, 2008. In the meanwhile the parties shall exchange draft issues. iii. The Court Receiver, High Court, Bombay shall submit a report as regards the payment of taxes and outgoings in respect of the suit property. Report to be submitted on or before 21st November, 2008. Copies thereof shall be supplied to the Advocates on record for the parties. iv. The Court Receiver shall act upon an authenticated copy of this order issued by the Registry. v. Suit to appear on Board on 25th of November, 2008 for settlement of issues. (A.S. OKA, J.) -: 5 :- .....