1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.632 OF 1999 Ajit Gopaldas Thakkar ..Appellant V/s. Smt.Bilanch Tellis ..Respondents (Since deceased) through Lrs & ors Mr.R.N.Kachare, Advocate, for the Appellant S.M.D'Mello h/f.M.S.D'Mello, Advocate, for the Respondent Nos.1(a) to 1(c) and 2 CORAM : R.C.CHAVAN, J. DATE : 8TH JUNE, 2010 P.C. . This Appeal, filed against an Order passed by the learned Judge, City Civil Court, Bombay dated 30th March, 1999, is being taken up for final hearing at the stage of admission by consent of the parties considering the fact that the Appeal is of the year 1999. 2. The facts which are material for deciding this Appeal are as under :- 2 The Appellant's predecessor Manoharlal Hukumchand Valecha had filed a suit for specific performance of Agreement of Sale against the original Respondents. This suit was registered as Special Civil Suit No.2791 of 1981 which came to be dismissed on 15th February, 1999, on account of failure of plaintiff and his Counsel to remain present before the Court. The Plaintiff applied for setting aside the dismissal of the suit on account of his absence, by taking out Notice of Motion No.1234 of 1999. The said Noice of Motion came to be dismissed on 30th March, 1999. Aggrieved thereby the Plaintiff filed this Appeal from Order contending that the learned Trial Judge erred in refusing to set aside dismissal of the suit, by failing to note that Plaintiff and his Counsel could not remain present before the Court as a wrong suit was mentioned in the cause list for the day. 3 3. The Respondents have contested this Appeal from Order and submitted that the Plaintiff and his Counsel knew that the suit was to come up before the Trial Court on 15th February, 1999 and therefore, they had absolutely no justifiable reason to remain absent when the matter was called out. The learned Counsel for the Respondents submitted that the main ground made out in the Application for setting aside dismissal of the suit was that the Counsel for the Plaintiff was busy in another matter before the High Court which is not a valid ground and not valid excuse for any Advocate before any Court. 4. However, the learned Counsel for the Appellant also points out that before the Trial Judge the Respondents had not questioned that a wrong suit number was mentioned in the cause list for the day. Instead of showing suit No.2791 of 1981 the cause list showed 4 suit No.2791 of 1984. Though, the execuse may be slender still this is an excuse, which may justify the claim that the Advocate was misled by wrong year and therefore, did not appear before the Court. 5. Considering the fact that the suit pertains to agreement of sale of immovable property, it would not be appropriate to allow the matter to be decided by default. In view of this, the Appeal is allowed. The impugned Order is quashed and set aside subject to the Appellant's paying to the Respondent Nos.1 & 2 on one hand and Respondent No.3 on the other hand a sum of Rs.12,500/- each within a period of two weeks from the date of this Order which may be received by the Advocates for the concerned Respondents on behalf of their clients. Upon such payment being made and certified by the Advocates, the suit bearing No.2791 of 1981 shall stand restored to the file of the City Civil Judge, Bombay. Parties 5 shall appear before Judge City Civil Court, Court No.2 at Dindoshi. The learned Judge would undoubtedly consider that the suit is of the year 1981 and shall endeavour to dispose it of as expeditiously as possible. Both the learned Counsel agree that they will co- operate with the learned Judge in early disposal of the suit. (R.C.CHAVAN, J.)