1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1427 OF 2003 NOTICE OF MOTION NO.1427 OF 2003 NOTICE OF MOTION NO.1427 OF 2003 IN IN IN SUIT NO.1087 OF 1986 SUIT NO.1087 OF 1986 SUIT NO.1087 OF 1986 Manohar Balwant Kawali & Ors. ...Plaintiffs Vs. Suresh Narayan Kawali & Ors. ...Defendants ----- Mr. M.K.Nesari for Plaintiffs CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. DATED: 8TH JULY, 2005 DATED: 8TH JULY, 2005 DATED: 8TH JULY, 2005 P.C. P.C. P.C. 1. The Plaintiff claims 1/4th share in the suit 1. The Plaintiff claims 1/4th share in the suit 1. The Plaintiff claims 1/4th share in the suit premises upon partition and other ancillary benefits. premises upon partition and other ancillary benefits. premises upon partition and other ancillary benefits. Several applications have been taken earlier in the Several applications have been taken earlier in the Several applications have been taken earlier in the suit. The order for giving the list to Defendants has suit. The order for giving the list to Defendants has suit. The order for giving the list to Defendants has been earlier passed. A further order in terms of the been earlier passed. A further order in terms of the been earlier passed. A further order in terms of the minutes of the Order signed by the Plaintiffs, minutes of the Order signed by the Plaintiffs, minutes of the Order signed by the Plaintiffs, Defendant No.1 and the then Respondents 1 and 2 Defendant No.1 and the then Respondents 1 and 2 Defendant No.1 and the then Respondents 1 and 2 against transfer of the suit property and for giving against transfer of the suit property and for giving against transfer of the suit property and for giving accounts to the Plaintiff have also been filed. accounts to the Plaintiff have also been filed. accounts to the Plaintiff have also been filed. 2. The Plaintiff’s Advocate has changed during 2. The Plaintiff’s Advocate has changed during 2. The Plaintiff’s Advocate has changed during pendency of the suit. Mr.Nesari who now appears for pendency of the suit. Mr.Nesari who now appears for pendency of the suit. Mr.Nesari who now appears for the Plaintiffs, is the second Advocate. The the Plaintiffs, is the second Advocate. The the Plaintiffs, is the second Advocate. The Plaintiff’s suit came to be dismissed for default on Plaintiff’s suit came to be dismissed for default on Plaintiff’s suit came to be dismissed for default on 24th February, 2000. Mr.Nesari has produced the Xerox 24th February, 2000. Mr.Nesari has produced the Xerox 24th February, 2000. Mr.Nesari has produced the Xerox copy of the Board of the Court of that day. The name copy of the Board of the Court of that day. The name copy of the Board of the Court of that day. The name of the previous Advocate is shown as the Advocate for of the previous Advocate is shown as the Advocate for of the previous Advocate is shown as the Advocate for 2 the Plaintiff. Mr.Nesari therefore, contends that he the Plaintiff. Mr.Nesari therefore, contends that he the Plaintiff. Mr.Nesari therefore, contends that he had no notice of this suit being on board. had no notice of this suit being on board. had no notice of this suit being on board. 3. This Notice of Motion has been taken out more 3. This Notice of Motion has been taken out more 3. This Notice of Motion has been taken out more than three years thereafter. It is the Plaintiff’s than three years thereafter. It is the Plaintiff’s than three years thereafter. It is the Plaintiff’s case that the Plaintiffs and their Advocate came to case that the Plaintiffs and their Advocate came to case that the Plaintiffs and their Advocate came to know of the order of dismissal for default when they know of the order of dismissal for default when they know of the order of dismissal for default when they made enquiry about the suit. Hence, they have taken made enquiry about the suit. Hence, they have taken made enquiry about the suit. Hence, they have taken out this Notice of Motion for restoration of the suit. out this Notice of Motion for restoration of the suit. out this Notice of Motion for restoration of the suit. The Notice of Motion has been served by registered The Notice of Motion has been served by registered The Notice of Motion has been served by registered post upon the Defendants 1 to 12 in May, 2003. It has post upon the Defendants 1 to 12 in May, 2003. It has post upon the Defendants 1 to 12 in May, 2003. It has been served by personal service upon Defendants 13 and been served by personal service upon Defendants 13 and been served by personal service upon Defendants 13 and 14 on 14th June, 2003. No affidavit in reply is 14 on 14th June, 2003. No affidavit in reply is 14 on 14th June, 2003. No affidavit in reply is filed. Hence, order. filed. Hence, order. filed. Hence, order. O R D E R O R D E R O R D E R 1. Notice of Motion is made absolute in terms of 1. Notice of Motion is made absolute in terms of 1. Notice of Motion is made absolute in terms of prayer clauses (a) & (b). prayer clauses (a) & (b). prayer clauses (a) & (b). . N.O.C. . N.O.C. . N.O.C. 2. The suit is restored to file. 2. The suit is restored to file. 2. The suit is restored to file. 3. The pleadings are complete. The Plaintiff has 3. The pleadings are complete. The Plaintiff has 3. The pleadings are complete. The Plaintiff has to file affidavit of documents which shall be done to file affidavit of documents which shall be done to file affidavit of documents which shall be done within 4 weeks. Suit to appear in the normal course. within 4 weeks. Suit to appear in the normal course. within 4 weeks. Suit to appear in the normal course. (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.) 3