1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION Notice of Motion No. 151 of 2009 in Testamentary Suit No. 69 of 2009 in Testamentary Petition No. 403 of 2003 Nirmal Jeethanand Samtani ..Plaintiff v/s. Mrs.Maya Gulabsinghani ..Defendant Mr.D.L.Khanchandani for the Plaintiff. Smt.B.P.Jakhade for the Defendant CORAM : R.Y.GANOO, J. DATED : 9th July, 2010 P.C. : 1. This motion is taken out for setting aside the order dated 13.2.2009 dismissing the Testamentary Suit, for want of prosecution. Affidavit in reply is not filed. Heard learned Counsels on both sides. The order of dismissal was passed on 13.2.2009 and this motion has been taken out on 9.10.2009. There is delay of about 236 days in filing the notice of motion. Prayer for condonation of delay is made at prayer clause (a). 2 2. After having heard learned Counsels on both sides, it is clear that there is some misunderstanding between the plaintiff and his advocate as regards attendance. Some efforts were made by the learned Counsel for the defendant to show that the medical certificates produced by the plaintiff may not be used in favour of the plaintiff to show that the plaintiff was not keeping well. She prayed for dismissal of the motion. 3. In the first place, looking to the quantum of delay and averments in affidavit in support of motion, I am of the view that the delay in filing this motion can be condoned. In my view, in the present case, court will have to take liberal view and allow the motion. Ofcourse, plaintiff will have to be put to terms. In my view, costs can be awarded to the defendant and if the costs of Rs.5000/- are awarded, it would meet ends of justice. Hence following order is passed. ORDER i) Motion is made absolute in terms of prayer clauses (a) and (b). ii) Testamentary Suit No.69 of 2003 is restored to the file of this Court. Plaintiff to pay to defendant costs of Rs.5000/- ( Rupees Five 3 Thousand Only). Costs of Rs.5000/- be paid over to the defendant through advocate for the defendant on or before 30.7.2010. iii) Suit set down for framing of issues on 6.8.2010, on which date the plaintiff shall produce before the court proof for having paid costs. On satisfaction of this aspect, the suit will proceed. Otherwise the suit will not proceed and the order of restoration of the suit shall stand revoked without further order from the court. [R.Y.GANOO, J.]