1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.19 OF 2009 IN NOTICE OF MOTION NO.1734 OF 2008 IN SUIT NO.12 OF 1986 Basil Shamrao Rath & Ors. .. Appellants Vs. Chandrakant V. Patil (now deceased) & Ors. .. Respondents Mr.R.S.Tripathi for the appellants Mr.M.M.Desai i/b M/s.Desai and Desai for the respondent nos.2 CORAM: SWATANTER KUMAR, C.J. & S.C.DHARMADHIKARI, J. DATE: APRIL 13, 2009 P.C.: 1. This appeal is directed against the order passed by the learned single Judge dated 15.12.2008 by which the Notice of Motion No.1734 of 2008 taken out by the present appellant came to be dismissed. That was an application for setting aside the order dated 13.01.2006 as well as for condonation of delay of two years, three months and eight days. The delay in taking out the application, thus, 2 was not condoned primarily on the ground that the applicant has failed to show sufficient cause for condonation of delay and consequently, for recalling the order dated 13.01.2006. The learned Judge noticed that the appellant have no good reason not to follow the litigation instituted by the appellants. In the affidavit in support of Notice of Motion, it was contended that the appellant was not able to contact his advocate because he was unemployed and under financial crunch. Consequently, he had to change his residence. He had engaged a counsel earlier but having come to know of the order, he received the papers from the Advocate in January 2005 and noticed that no steps were taken and regarding dismissal of the suit vide order dated 13.01.2006 the explanation is that it was learnt on 23.01.2008. 2. There is no doubt that there has been definite negligence on the part of the appellants but the fact of the matter is that they still deserve to get an opportunity to prove their case to the satisfaction of the competent court. It is not a case that the court should shut the doors of justice to the appellant's right at the threshold. The suit was registered in the year 1986 and it appears that it suddenly came up for final hearing in the year 2006 and came to be dismissed in default of appearance of counsel for the parties. This court had also directed 3 report to be submitted by the Bombay City Survey and Land Record which was submitted by the letter dated 10.06.87. 3. Having heard the learned counsel appearing for the parties and keeping in mind the above circumstances, we are of the considered view that the order impugned in the present case be set aside and the appellant should be granted opportunity to prove their case before the court in accordance with law. 4. We set aside the order dated 15.12.08 and also set aside the order dated 13.01.06 and restore the suit to its original number and file. However, this will be subject to payment of Rs.10,000/- as cost. The cost is conditional to the order of restoration. In the event, the cost is not paid within two weeks from today, the suit would stand dismissed by revival of the order dated 13.01.2006 automatically. In the event, the cost is paid, written statement shall be filed by the respondent within two weeks thereafter and the court shall proceed in accordance with law. The cost be paid to the respondent or his counsel. Appeal is accordingly disposed of. (CHIEF JUSTICE) 4 (S.C. DHARMADHIKARI, J)