1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.185 OF 2009 IN NOTICE OF MOTION NO.1572 OF 2008 IN SUIT NO.599 OF 1999 Kishore Deepchand Bajaj ..Appellant. Vs. Nikhil Kishore Bajaj ..Respondent. Mr.N.D. Jaywant for the Appellant. Mr.Vishal Kanade i/b. M/s.N.C.Dalal & Co. for the Respondent. CORAM : B.H. MARLAPALLE AND S.J. VAZIFDAR, JJ. DATED : 29TH JUNE, 2009 P.C. :- Heard Mr.Jaywant, the learned counsel for the Appellant – Original Defendant. 2. The Appellant is the father of the Respondent and the Appellant has filed Suit No.599 of 1999. The said suit came to be dismissed for default on 17.7.2007 and, therefore, Notice of Motion No. 1572 of 2008 was taken out for restoration of the said suit on or about 21.4.2000. 2 By the impugned order the said Notice of Motion was allowed and the suit has been restored. 3. As per Mr.Jaywant, the Plaintiff attained majority and he did not file the affidavit in support of the motion but the affidavit was filed by his step-mother. It was further pointed out that the Advocate’s clerk by name Shri S.T. Pujari, who was claimed to be unwell from 17.7.2007, did not file any affidavit in support of the motion. It was therefore submitted that on these two grounds, the motion itself was not maintainable. 4. Mr.Kanade, the learned counsel appearing for the Respondent, submitted that the Respondent was at the relevant time at Dubai and therefore he had requested the step-mother, with whom he was staying before his departure from India, to file the motion and also an affidavit in support thereof. 5. It was further pointed out that in any case the step-mother has been appointed as the power of attorney on 28th July, 2007. It was also pointed out that the suit property has already been alienated after the suit was dismissed for default, i.e. after 17.7.2007. This is an issue which will have to be decided in the pending suit. 6. As far as this Appeal is concerned, we are satisfied that the learned Judge has not committed any error in allowing the motion, so as to restore Suit No.599 of 1999 and, therefore, the said order does 3 not call for any interference. 7. Hence, the Appeal is dismissed. (S.J. VAZIFDAR, J.) (B.H. MARLAPALLE, J.)