1 App259 & 261.0 Kambli IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.259 OF 2010 IN NOTICE OF MOTION NO.311 OF 2008 IN SUIT NO.1377 OF 1982 WITH APPEAL NO.261 OF 2010 IN NOTICE OF MOTION NO.653 OF 2009 IN SUIT NO.1378 OF 1982 ... Bharatiben Tarun Motta ...Appellant v/s. Kishore M. Shah & Ors. ...Respondents ... Mr.Rajiv Narula i/b Jhangiani, Narula & Associates for the Appellant. Mr.D.H.Mehta i/b Y.R.Shah for the Respondents. ... CORAM: D.K.Deshmukh & Anoop V. Mohta, JJ DATED: 5th April, 2011 P.C.: Admit. Heard finally by consent of parties. 2 App259 & 261.0 2. By both these Appeals the original Plaintiff challenges the order passed by the learned single Judge of this court dismissing the Notices of Motion taken out by the Plaintiff for restoration of the suits, which were dismissed for default. Both suits were for dissolution of partnership firm. Suit No.1377 of 1982 was dismissed on 18th July, 2007 and other Suit No.1378 of 1982 was dismissed on 18th November, 2008. 3. The case of the Plaintiff is that the Plaintiff had appointed an employee of her by name Mr.John Herman to look after both the suits. That employee expired on 23-6-2007. With the result, the Plaintiff could not attend the suit and both the suits came to be dismissed. The learned single Judge dismissed the Notices of motion taken out by the Plaintiff for restoration of the suits basically for failure of the Plaintiff to produce the documents showing that the named employee was given authority by the Plaintiff to attend the civil suits. The learned single Judge has also noted that the lawyer, who was 3 App259 & 261.0 engaged by the Plaintiff, had also given notice to the Plaintiff for withdrawal of his power, because the Plaintiff was not contacting the lawyer. 4. The learned Counsel appearing for the Plaintiff submitted that the Plaintiff was contesting both the suits. In fact the litigation was carried up to the Supreme Court at the stage of grant of interim reliefs. Therefore, there was no reason why the Plaintiff will allow her suits to be dismissed for default deliberately. The learned Counsel submits that the learned single Judge should have drawn proper inference from the fact that no purpose of the Plaintiff is served by allowing her suits for dismissed for default, and therefore, unless there was truth and substance in the reason that was given by the Plaintiff, the Plaintiff would not allow her own suits to be dismissed for default. The learned Counsel further submits that it is true that by dismissal of the suits certain rights are created in the Defendant, but the prejudice that may result by restoration of the suits to the interest of the Defendant is incapable of being compensated by awarding 4 App259 & 261.0 substantial costs to the Defendant. 5. The learned Counsel appearing for the Defendant, on the other hand, submits that apart from the fact that no document showing that authority was given to the named employee and except to say that the Plaintiff has not received the letter, the Plaintiff has not said anything in relation to the letter addressed to the Plaintiff by her lawyer. The learned Counsel submits that the Plaintiff has been negligent in prosecuting the suits and if the suits are restored she will again start proceeding, with the result the interest of the Defendants will be adversely affected. 6. Now, if in the light of these rival submissions the record of the case is perused, it becomes clear that it is true that except to say that the Plaintiff has not received the letter from her lawyer, the Plaintiff has not produced any document on record or has not produced any material justifying her conduct of not attending the suits and not contacting her lawyer. She has also not produced any document to show 5 App259 & 261.0 that the authority was given to the employee. However, in our opinion, the fact that the Plaintiff does not stand to gain anything by allowing her suits to be dismissed for default, an inference has to be drawn that the Plaintiff did everything within her power to prosecute the suits, but because of firstly the failure of the employee to be vigilant and the death of the employee resulted in dismissal of the suits. Even according to the learned Counsel, the dismissal of the suit will not prevent the Plaintiff from reagitating the same rights in independent proceedings. In such a situation, in our opinion, it will be unjust not to restore the suit which will enable the Plaintiff to prosecute the suit. It is true that dismissal of the suit creates certain rights in the Defendant and therefore by restoration of that suit prejudice is likely to be caused to the Defendant. But as rightly submitted by the learned Counsel appearing for the Plaintiff, the prejudice that is likely to be caused by restoration of the suit to the Defendant is capable of being compensated in terms of money. In our opinion, if heavy costs are imposed on the Plaintiff prejudice that may be caused to the interest of the Defendant is incapable of 6 App259 & 261.0 being mitigated. In our opinion, therefore, following order would meet the ends of justice. O R D E R (i) The orders impugned in both the Appeals are set aside. (ii) Notice of Motion No.653 of 2009 and Notice of Motion No.311 of 2008 are granted. Suit No.1377 of 1982 and Suit No.1378 of 1982 are restored to file, subject to the Plaintiff paying to the Defendant No.1(a) to 1(c) Rs. 30,000/- in each Appeals as costs. (iii) Payment of costs is condition precedent and payment to be made within a period of two weeks from today. (iv)Appeals disposed of. (v)As the suits are of the year 1982, the learned single Judge is requested to hear and dispose of the suit as expeditiously as possible. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.) 7 App259 & 261.0 8 App259 & 261.0