1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2434 OF 2006 IN SUIT NO. 1385 OF 1984 Fali P. Bomanji & Anr. ....... Plaintiffs. V/s M/s. Formac Engineering Limited & anr. ........ Defendants. And Piloo Fali Bomanjee & Ors. ........ Applicants And Suresh J. Thaker ........ Respondent. ----- None for the Plaintiffs. Mr. Virag Tulzapurkar with Mr. M.S. Doctor with Ms Chandrana i/b Mahernosh Humranwala for the applicants. Mr. M. P. S. Rao i/b Little & Co. for defendant No.1. ------ CORAM: V.M. KANADE, J. DATE : 23RD SEPTEMBER, 2008 P.C.: 1. Applicants have taken out this Notice of Motion for recalling the order dated 21/7/2005 passed by this Court (Coram: D.G. Karnik, J.), dismissing the suit for want of prosecution. 2 2. Brief facts are as under:- 3. Plaintiffs have filed the present suit for a declaration that the defendants are trespassers in respect of their property more particularly described in the plaint and for recovery of possession of the suit property admeasuring about 4402 sq.ft. approximately and for mesne profit. Plaintiff No.1 expired on 18/3/2004 and Chamber Summons No.1768 of 2004 was taken out by the applicants for bringing the heirs of plaintiff No.1 on record. By an order dated 3/5/2005, the Chamber Summons was made absolute. However, actual amendment for bringing the heirs of plaintiff No.1 which was shown in the schedule was not carried out. The defendants also had not filed their Written Statement. The matter appeared on board of Mr Justice D.G. Karnik under the caption of “Undefended Suit” on 21/7/2005. On the said date, the following order was passed and the suit was dismissed under Order 9 Rule 8 of the Code of Civil Procedure, 1908. “P.C: 1. None present for the plaintiffs when called. 3 2. Learned counsel for the defendant no.1 points out that plaintiff no.1 has already died. Though a chamber summons no.1768 of 2004 was made absolute on 3rd May 2005. No amendment has actually been carried out and the heirs have not been brought on record. Hence, suit of the plaintiffs is dismissed under Order 9 Rule 8 of the Code of Civil Procedure.” 4. It is the case of the applicants that they came to know about this order when they applied for certified copy of the order dated 21/7/2005 on 22/6/2006 and, thereafter, the present notice of motion was taken out on 27/7/2006. Along with this Notice of Motion, an affidavit of Kishore Bhatkar, a Court Clerk in the employment of the then advocate on record has been filed and also the affidavit of Mr. Suresh Thaker, the then advocate on record was filed. In reply, defendant No.1 has filed his affidavit as also the affidavit of Mrs. Piloo Fali Bomanjee has been filed. 5. In the affidavit in support of the notice of motion filed by the advocate, it is stated that on 21/7/2005, he has received a phone call on his mobile that his son met with an accident and, upon hearing that, he immediately left the Court 4 and could not attend the matter when it was called out. The Court Clerk Mr. Kishore Bhatkar in his affidavit has stated that on 21/7/2005, Advocate Thaker's son met with an accident and he was undergoing treatment. He has also stated that on 21/7/2005, advocate Thaker informed him that he had received a call that his handicapped son had met with an accident and, therefore, he had to rush back to his house. The learned Counsel appearing on behalf of the applicants submitted that the delay caused in filing the notice of motion for restoration may be condoned and the notice of motion may be allowed and the suit may be restored to file. 6. Mr. Rao, the learned Counsel appearing on behalf of defendant No.1 vehemently opposed the restoration of the suit. He submitted that false affidavits have been filed by the then advocate of the applicants and by his Clerk. He submitted that the same reason i.e his son had met with an accident was given when the Chamber Summons was taken out by the applicants for condonation of delay in bringing the heirs of plaintiff No.1 on record. He strenuously urged that no sufficient cause had been shown by the applicants and that the applicants and their 5 advocate both were negligent and not vigilant. No application was made for about one year for restoration of the suit. He submitted that if the advocate knew that the matter was on board, he ought to have inquired about the order passed by the learned judge on that day. He submitted that the advocate's clerk was present in court which is evident from the affidavit filed by his clerk Mr. Kishore Bhatkar and that, that being the position, he was aware of the order passed by this Court and, therefore, there was no reason for him not to make an application for restoration. 7. I have heard Counsel for the applicants as also the Counsel for defendant No.1 at length. The then advocate Mr. Thaker in his affidavit has stated that his son was handicapped and that soon after he was born, gangrine was formed in his right leg and his leg below the knee had to be amputed when he was hardly two months old. He has also stated in his affidavit that six months after the birth of his son, his son developed a cataract in his right eye and that even the vision of his left eye was not proper. He has stated that he received a call on his mobile that his son had met with an accident and, after hearing the said 6 news, he could not think of anything else and rushed back to his house. 8. In my view, the explanation given by the applicants' advocate for not remaining present is a plausible explanation. It is not disputed by defendant No.1 that the the plaintiffs' then advocate's son was handicapped and was undergoing treatment. There has been some delay in filing the application for restoration of the suit but it cannot be said that the delay is unexplained. While considering the application for restoration of the suit which is dismissed for want of prosecution under Order 9 Rule 8, the Court has to examine whether the cause which is shown by the plaintiff for condonation of delay in filing the application for not remaining present in Court is a sufficient cause. Whenever such applications are heard, Court is not supposed to examine whether the plaintiff has proved this fact beyond the reasonable doubt. If a plausible explanation is given by the party who seeks condonation of delay, such an explanation has to be accepted by the Court in the interest of justice and in order to ensure that the case is decided on merits and in accordance with law. 7 9. It is no doubt true that, on earlier occasion, when the Chamber Summons was filed for bringing the heirs of plaintiff No.1 on record, a similar reason was given by the advocate for the plaintiffs that his son had met with an accident and on that ground delay was condoned. It cannot be said that, therefore, when a similar ground is taken in this Notice of Motion, a dishonest plea has been taken by the applicants. It has to be borne in mind and it is a well settled position in law that for the fault of an advocate, the litigant should not be penalized and, therefore, even assuming for a moment that the applicants' advocate was negligent, for that reason the litigant cannot be penalized. The second aspect which has to be noticed is that the defendant No.1 was served with the writ of summons in 1984. No Written Statement was filed by the defendant No.1 till 21/7/2005 when the suit was dismissed. The suit was shown under the caption of undefended suit. The defendant No.1, therefore, cannot be permitted to take advantage of his own wrong by raising a plea that dishonest defence is taken by the applicants for condonation of delay. The suit was filed in 1984. Plaintiffs have been diligently pursuing the suit from 1984 till 8 2005. Defendant No.1 did not file his Written Statement. A decree was to be passed in favour of the plaintiffs on the day when the suit was kept under the caption of undefended suit. The plaintiffs, therefore, diligently pursued the suit from 1984 till 2005. Taking into consideration these facts and taking an overall view of the matter, in my view, the notice of motion taken out by the applicants will have to be allowed. 10. Accordingly, Notice of Motion is allowed in terms of prayer clauses (a), (c ) & (d). 11. For restoration of the interim relief, however, applicants may take out a fresh Notice of Motion and seek restoration of the interim relief. Liberty is granted to the applicants for taking out fresh Notice of Motion for restoration of the interim relief. 12. Plaint may be amended as per the order passed in Notice of Motion No.1768 of 2004 within a period of two weeks from today. Applicants, however, are directed to pay the costs which is quantified at Rs 10,000/- to defendant No.1. 9 13. With the above directions Notice of Motion is disposed of. 14. Suit is adjourned to Friday the 26th September, 2008. (V.M. KANADE, J.) 10