ash 1 57ao-322.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO. 322 OF 2005 Smt. Dilrajidevi Ramashankar Shukla. .. Appellant Vs Smt. Gujaratidevi Hardeo Dube & Ors. .. Respondents -- Ms Sucheta Joshi Dongre i/by Shri Pankaj Thatte for the Appellant. -- CORAM ; A.S. OKA, J DATED : 18TH MARCH, 2011 P.C. . Heard learned counsel appearing for the Appellant who is the original Plaintiff. The challenge in this Appeal from Order is to the order dated 28th June, 2001 passed by the learned Trial Judge. The suit filed by the Appellant was dismissed for non-prosecution. Out of four Defendants, the 1st Defendant had died prior to the dismissal of the suit and the 3rd Defendant died after dismissal of the suit. In the Notice of Motion taken out by the Appellant, a prayer was made for restoration of the suit which was dismissed for non-prosecution. By the impugned order, the learned Trial Judge dismissed the Notice of Motion only on the ground that there was no prayer made for condonation of delay in taking out the Notice of Motion for restoration. ash 2 57ao-322.05 2. I have heard learned counsel appearing for the Appellant. None appears for Respondent Nos.2 and 4. In my view, there is an error committed by the learned Judge by dismissing the Notice of Motion on the ground that there was no prayer for condonation of delay. The learned Trial Judge ought to have granted reasonable time to apply for condonation of delay either by taking out a separate Notice of Motion or by amending the Notice of Motion for restoration. Only with a view to give an opportunity to the Appellant to apply for condonation of delay, the impugned order will have to be quashed and set aside. 3. Hence, I pass the following order: ORDER: (a) The impugned order dated 20th June, 2001 is quashed and set aside and the Notice of Motion No. 5981 of 2000 is restored to the file of the Trial Court. (b) Time of eight weeks is granted to the Appellant to take out appropriate proceedings for condonation of delay in taking out a Notice of Motion for restoration of the suit. ash 3 57ao-322.05 (c) If appropriate proceeding is not taken out within a period of eight weeks from today, the Notice of Motion No.5981 of 2000 will stand dismissed for non-prosecution without further reference to the Court. (d) If Notice of Motion is taken out for condonation of delay within the stipulated time, the same shall be decided by the Trial Court in accordance with law. (e) The Appeal from Order is partly allowed on above terms with no orders as to costs. ` ( A.S. OKA, J )