1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2876 OF 2008 IN SUIT NO.328 OF 1995 Mrs.Genevieve S. Poudwal .. Plaintiff Versus Mrs.Constance Sircar and Abhijeet A. Sirkar .. Defendants. Mr.Chitnis i/b. Deepak Chitnis Chiparikar & Co. for plaintiff Mr.Q.M.Ashfaq for defendants/ respondents. CORAM : S.C.DHARMADHIKARI, J. DATE : 14th August 2009. P.C.: 1] Suit No.328 of 1995 was dismissed on 1st March 2000 in the following terms:- “There is nothing on record as ordered on 8th December, 1999 to show that the defendants have been served with the written statement. Suit is dismissed for non prosecution.” 2] The order has been passed by the Prothonotary & Senior Master, 1 High Court, Bombay. 3] When the present motion was taken out in the year 2008 to set aside this order, it has been noticed that the sole defendant has since expired, the suit has, therefore, even otherwise, abated. 4] Both the abatement and the dismissal by the Prothonotary & Senior Master is sought to be set aside. 5] Mr.Chitnis appearing in support of this motion contends that the writ of summons was duly served and the annexures to the affidavit in support of the notice of motion would demonstrate this fact. There is no denial of this statement and the contents of the documents are not controverted in the affidavit in reply. 6] On the other hand it is contended that the order dismissing the suit has been passed in the year 2000 and the present motion has been filed on 13th August 2008. There is no explanation, much less, satisfactory, for the enormous delay. Secondly, there is no question of the order of 1 Prothonotary & Senior Master being now set aside as the sole defendarnt has expired. The chamber summons that has been taken out to implead the heirs and legal representatives of the sole defendant who has expired is infructuous because that is moved in the suit which is not on the file of this Court. In these circumstances, the motion be dismissed. 7] Alternatively, it is contended that if this Court is inclined to grant the prayers in the notice of motion, heavy cost be imposed so as to compensate the defendant/ respondent for the enormous delay. 8] I have perused the affidavits in support and reply to this notice of motion. The order of the Prothonotary & Senior Master is clearly vitiated by non application of mind. The reason for dismissal of the suit apparently stated therein is that there is nothing on record to show that the defendant has been served with the written statement. It is elementary that the defendants are served with the writ of summons and on receipt of which they file written statement which is served upon the plaintiff. Defendants are not served with any written statement. More so, when there is nothing on record to indicate that there is any counter claim. 1 From the record it is apparent that the writ of summons is duly served and that is how parties have proceeded . The writ of summons is duly served as evident by the annexures to the affidavit in support. In all these matters, the paramount consideration is that substantial justice should be done so that the plaintiff or defendant is not deprived of an opportunity and right to have an adjudication of the claim on merits. The Court must be really concerned with this aspect of the matter and if the conduct of plaintiff or the defendant is such, which can be compensated by the direction to pay costs, then, they should not be deprived of the opportunity and right available to them in law. All procedural provisions are meant to assist the Court in rendering justice and not defeating it. 9] From the record it is not demonstrated that the conduct of the plaintiff is of utter callousness or total and complete negligence. No malafides are also alleged. In such circumstances, for whatever the procedural requirements are, if they are to be complied with by the Advocates, then parties must not suffer for the inaction of their Advocates. In such circumstances, both, the order of the Prothonotary & Senior Master dated 1st March 2000 is quashed and set aside so also 1 dismissal of the suit as abated. However, this would be on condition that the plaintiff pays cost quantified at Rs.10,000/- to the defendant/ respondent within two weeks from today. 9] On the costs being paid, the sole defendarnt/ respondent Abhijit Sarkar shall stand impleaded as defendant in place of the deceased. Plaint and proceedings are permitted to be amended accordingly. Amendments to be carried out within two weeks from the date of payment of costs. If no compliance is made with this condition, notice of motion to stand dismissed without any further reference to Court. 10] Ad-interim order dated 20th August 2008 on the present notice of motion to continue to enable the plaintiff to comply with the order passed today. Needless to state that the order will continue further, only if compliance is made with the aforesaid directions. (S.C.DHARMADHIKARI, J)