1 52 nms 783-10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION srk NOTICE OF MOTION NO. 783 OF 2010 IN SUIT NO.1280 OF 2001 Ramesh Dnyaneshwar Dhole .. Plaintiff V/s. Smt. Jayashreedevi Omkar Ban & Ors. .. Defendants. Mr. S.V. Pitre for the Plaintiff. Ms. Alpana Ghone i/b Shah & Sanghvi for Defendant nos.1 to 3, 5 and 6. CORAM : K.K.TATED, J. DATE : 24TH AUGUST, 2011. P.C. 1 Heard the learned counsel for the parties. 2 This Motion is preferred by the Plaintiff for recalling the order dated 17th February, 2010 passed by this Court (Coram: Anoop V. Mohta, J.) by which the suit was dismissed for non prosecution. The learned counsel appearing on behalf of Plaintiff states that it remains on the part of advocate to take appropriate steps when matter was called out on 9th September, 2010, 6th January, 2010 and 17th February, 2010. He further submits that because of mistake on the part of the advocate no one was 2 52 nms 783-10.doc present when the matter called out. He submits that Plaintiff have good chance of success in the present suit. Because of mistake on the part of advocate, Plaintiff should not suffer and therefore, in the interest of justice, the order dated 17th February, 2010 be recalled and Suit to be decided on merits. 3 The learned counsel appearing on behalf of Defendants vehemently opposed the present Motion. They filed their affidavit in reply dated 28th April, 2010. The learned counsel appearing on behalf of Defendants submits that the Plaintiff has not made out any case for recalling the order dated 17th February, 2010. She further pointed out that the Plaintiff in his affidavit in support of Notice of Motion in para 5 stated that “I further say that on the dates mentioned in the said order it appears that the name of the Advocate for the Plaintiff was either not shown or the advocate for the Plaintiff by oversight missed the same”; this shows that the Plaintiffs themselves are not sure why the advocate was not present when the matter called out. Therefore, the Plaintiff has not made out any case for recalling the order dated 17th February, 2010. 4 After considering the submissions made by the learned counsel appearing on behalf of the Plaintiff and averments made in affidavit in support of the Notice of Motion, I satisfied that because of the mistake on 3 52 nms 783-10.doc the part of the Plaintiff’s advocate no one remain present when the matter called out on three occasions. Because of the mistake on the part of the advocate litigant should not suffer and considering these facts, Notice of Motion is made absolute in terms of prayer clause (a). Plaintiff to pay sum of Rs. 2,500/- by way of cost to the Defendants through Defendant’s advocate within two weeks from today. The prayer clause (a) reads as under: “(a) To restore on file Suit No.1280 of 2001 which was dismissed for want of prosecution by this Hon’ble Court (Coram: Anoop V. Mohta, J.) on 17.02.2010, and be pleased to decide the same on merits in the interest of justice.” 5 Office is directed to place the Suit on board for framing issues on 3rd October, 2011. 6 Notice of Motion is disposed of accordingly. (K.K.TATED, J.)