IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4865 OF 2007 IN SUIT NO.4673 OF 1996 Smt Smita Ravindra Salvi .. Plaintiff Versus Manilal Jivraj Shah & Ors. .. Defendants Mr.Virag Tulzapurkar, Sr.Counsel i/by Wadia Ghandy & Co for the plaintiff. Mr.H.S.S.Murthy i/by Mr.S.K.Dube for the defendant nos.2, 4 and 6. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 03rd December 2008. : 03rd December 2008. : 03rd December 2008. P.C.: . The Notice of Motion is taken up for final disposal. I have heard the submissions of the learned counsel appearing for the plaintiff in support of notice of motion. I have also heard the submissions of the learned counsel appearing for the 2nd, 4th and 6th defendants who has opposed the prayer made in the notice of motion. 2. On 04th July 2003, 11th July 2003 and 18th July 2003 the suit was listed before the Prothonotary and 2 Senior Master for directions. On all the three dates none appeared for the plaintiff. Therefore, on 18th July 2003 the learned Prothonotary and Senior Master directed that the suit shall be listed for dismissal. Accordingly, the suit was listed on 25th July 2003. As none appeared for the plaintiff, the suit was dismissed for default. The present notice of motion is taken out by the plaintiff for setting aside the order passed by the learned Prothonotary and Senior Master on 25th July 2003 and for restoration of the suit. 3. The submission of the learned senior counsel appearing for the plaintiff is that when a suit filed by the defendants against the plaintiff in the City Civil Court came up for recording evidence in the month of February-March 2007, the 2nd defendant herein tendered a certified copy of the copy of the order dated 25th July 2003 showing that the present suit has ben dismissed in default. He pointed out that thereafter the present notice of motion has been taken out for setting aside the said order and for restoration of the suit. He submitted that a case for restoration is made out. 4. The learned counsel appearing for the contesting 3 defendants pointed out that even according to the case of the plaintiff, she had a knowledge of the dismissal of the suit in February 2007. He pointed out that the suit in the City Civil Court was decided in June 2007 against the plaintiff. He pointed out that an appeal against the said decree was filed by the plaintiff and in November 2007 the decree passed by the City Civil Court in favour of the contesting defendants has been stayed. He submitted that there is absolutely no explanation for the delay in filing the notice of motion from February 2007 to December 2007. He submitted that apart from the fact that there is a gross unexplained delay, the delay appears to be deliberate. He submitted that even before the learned Prothonotary and Senior Master, the plaintiff repeatedly remained absent. He submitted that in the suit of the year 1996, writ of summons was not served till July 2003 and therefore the suit was listed before the learned Prothonotary and Senior Master. He pointed out that the plaintiff had full knowledge of the fact that the 1st defendant had died in the year 1999 and the 3rd defendant has died in the year 2003 as the legal representative of the said defendants were brought on record in the suit filed in the City Civil Court. He submitted that before the 4 notice of motion was filed, the 5th defendant has died. 5. I have carefully considered the submissions. The suit appeared before the Prothonotary and Senior Master on account of non service of writ of summons. The record shows that the advocate appointed by the plaintiff continuously remained absent and ultimately the suit was dismissed on 25th July 2003. The dismissal of the suit is on technical ground of non removal of objection regarding service of writ of summons. 6. It is true that the plaintiff had knowledge of dismissal of the suit atleast in February or March 2007 and the present notice of motion is taken out in December 2007. In paragraph 5 of the affidavit in support, the plaintiff has stated that the hearing of the suit in City Civil Court concluded in April 2007 and the judgment was reserved. It is stated that the plaintiff was advised to make an application for restoration of the present suit depending upon the outcome of the said suit in the City Civil Court. It is stated that the City Civil Court decreed the suit on 24th June 2007 and an appeal was filed by the plaintiff against the said decree in this Court. It is stated 5 that on 23rd November 2007, this Court has granted conditional stay in favour of the plaintiff. 7. The suit was dismissed for default as the the advocate appointed by the plaintiff remained absent and the said advocate did not take any steps for effecting service of writ of summons. The plaintiff cannot be allowed to suffer on account of the default of her advocate. It is true that from the date of the knowledge of the dismissal, the plaintiff has not taken steps expeditiously. It is her case that she was advised to wait till the decision of the suit pending in the City Civil Court. 8. An occasion for making an application for restoration of the suit normally arises when there is some default on the part of the litigant. In the present case, the dismissal is on account of failure of the advocate for the plaintiff to remain present and to take steps in the matter. The suit has been dismissed on account of failure to serve the writ of summons. An objection is raised that some of the defendants have expired. Steps can be taken for bringing the heirs on record only after the suit is restored. 6 9. Though a case is made out for restoration of the suit, as pointed out earlier, there is a delay on the part of the plaintiff in approaching this Court. Therefore, the 2nd, 4th and 6th defendants will have to be compensated by ordering payment of heavy costs. 10. Hence, I pass the following order: (i) Notice of Motion is made absolute in terms of prayer clauses (a) and (b) subject to condition of the plaintiff paying costs quantified at Rs.25,000/-. (ii) The costs shall be paid or deposited within a period of four weeks from today. Payment/deposit of costs will be condition precedent. On the failure of the plaintiff to comply with the order of payment of costs, the order of dismissal of the suit will stand. (A.S.Oka,J) 7