1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 692 OF 2008 IN NOTICE OF MOTION NO. 3867 OF 2005 IN S. C. SUIT NO. 55 OF 1999 Sunil Chintamani Ketkar .. Appellant V/s. B. M. C. and others .. Respondents Mr. G. S. Gokhale for the Appellant. Mrs. K. K. Soran for Respondent No.1- BMC. Mr. R. P. Ojna for Respondent Nos. 2 and 3. CORAM : J. H. BHATIA, J. DATE : MARCH 22ND, 2010. P.C. : Heard the learned counsel for the parties. 2. The Appellant is the original Plaintiff in S.C. Suit No. 55 of 1999. On 2nd September, 2005, the suit was fixed for filing the affidavit in examination-in-chief of the Plaintiffs. When the 2 matter was called, none was present for the Plaintiffs and therefore, the suit came to be dismissed on default on 2nd September, 2005. On 15th October, 2005, the Plaintiffs filed Notice of Motion for restoration of the suit taking two grounds, but the learned counsel for the Petitioner pressed only one today. According to him on 2nd September, 2005, the Plaintiffs had come to the Court, but, before the matter was called he was not feeling well and therefore, he was immediately taken to Lilavati Hospital and was admitted there. He was discharged from the Hospital on 7th September, 2005 and he was advised bed rest for two weeks thereafter. Hence, some delay was caused in the filing of Notice of Motion. 3. Notice of Motion for restoration should have been filed within 30 days and the delay was of 13 days only. The Medical Certificate also corroborated the contention of the Plaintiffs that he was infact admitted in Lilavati Hospital on 2nd September, 2005 and was indoor patient upto 7th September, 2005 and was advised to rests for two weeks thereafter. Taking into consideration, the above circumstances, the Trial Court should not taken such a harsh and technical view in rejecting the Notice of Motion. It is pointed out that on an earlier 3 occasion, the suit was dismissed on 16th June, 2004, and was restored to the file on payment of costs. If it was restored, there must have been some good cause for the same. The circumstances in which the Plaintiffs could not appear before this Court on 2nd September, 2005 were such that the matter needed to be restored in the interest of justice. 4. In view of the above circumstances, subject to payment of costs of Rs. 2,000/- to be paid to the Respondent Nos. 2 and 3, within one week from today the Appeal is allowed and the impugned order is hereby set aside and the Notice of Motion No. 3867 of 2005 is allowed and S. C. Suit No.55 of 1999 is, restored to the file. 5. The parties shall appear before the Trial Court on 13th April, 2010 and the Trial Court shall expedite the hearing and disposal of the suit on its own merit. (J. H. BHATIA, J.) 4