:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.4211 OF 2007 OF MOTION NO.4211 OF 2007 OF MOTION NO.4211 OF 2007 IN IN IN SUIT SUIT SUIT NO.489 OF 1978 NO.489 OF 1978 NO.489 OF 1978 U.P. Cooperative Federnation Ltd. ..Plaintiffs V/s Sayaji Mills Ltd. and Anr. ..Defendants Shri Akhilesh Dubey for the Plaintiffs Shri Swapnil Bangar i/b G.S. Manswala for defendant CORAM ; A.A.SAYED, J. DATE : 6TH MAY, 2009 P.C. 1. This Notice of Motion has been taken out by the plaintiffs for restoration of the suit which was dismissed by order dated 5th October, 2007. 2. The case of the plaintiffs in the affidavit in support of Notice of Motion, is that one Advocate, Mr. C.M. Kothari was appointed in the matter and issues in the suit were framed on 14th July, 1997. A Notice of Motion was also taken out by the plaintiffs being Notice of Motion No. 3008/2000 for expediting the hearing of the suit and accordingly the hearing of the suit was expedited by order dated 1st :2: September, 2005. The blame for dismissal of the suit is essentially sought to put on the said advocate Mr. C.M. Kothari, who was appearing for the plaintiffs and it is averred that ultimately the said Advocate returned the brief to the plaintiffs without stating any reason and therefore, the legal assistant of the plaintiff Mr. Pande appeared in person before the Court on 21st September, 2007 and sought time to engage another Advocate. Thereafter the plaintiffs approached Mr.I.K. Tripathi, Advocate. However said I.K. Tripathi also returned the brief citing personal difficulties. It was in these circumstances, the plaintiffs approached the present Advocate Mr. Akhilesh Dubey on 4th October, 2007 who sought time on 4th October,2007, on which date the matter was ultimately dismissed as the Court was not inclined to give further time. It is further stated in the affidavit in support of the Motion that the office of the plaintiff is situated in Lucknow and therefore, the plaintiffs were in practical difficulty to file the affidavit in pursuance of the order of this Court. It is therefore prayed that in the interest of justice the affidavit of evidence which is ready be taken on record and the suit be :3: restored to file. 3. An affidavit in reply has been filed by the defendant No.2 opposing the Motion. In the reply it is pointed out that the suit was dismissed on 5th October, 2007 and the motion was served on 7th March, 2009. It is further averred that though an order was passed for expeditious disposal of the suit no efforts were made by the plaintiffs to place the matter on Board after 1st September, 2005. It is further stated that no proper reason or explanation has been given in the affidavit in support of Motion and therefore, the motion deserves to be dismissed with costs. 4. I have heard the learned Counsel for the parties and perused the material on record. No doubt, as is reflected in the order dated 5th October, 2007 that the plaintiffs have not pursued the matter seriously and sought several adjournments in the suit which is of the year 1978. However, considering the overall facts of the case, in my view though the the plaintiffs cannot be said to be free of blame, I am inclined to grant the plaintiffs an :4: opportunity to contest the suit on merits. In my opinion the facts of the case are not such that the plaintiffs should be non-suited. The delay in service of the motion has been explained in the rejoinder. The suit was dismissed on 5th October, 2007 and the present Notice of Motion is filed on 2nd November, 2007. The defendants can be compensated by imposing appropriate costs. 5. Taking an overall view of the matter, in the interest of justice, the Notice of Motion is allowed in terms of prayer clause (a) subject to costs of Rs. 30,000/- to be paid as follows :- Rs.15,000/- to be paid by the plaintiffs to defendant No.1 and Rs. 15,000/- to be paid by the plaintiffs to the defendant No.2. Costs to be paid on or before 31st May, 2009 and would be condition precedent. 6. The plaintiffs shall file their affidavit of evidence, which according to them is ready as is stated in the affidavit in support of motion within one week from today. If the affidavit is not filed the present Notice of Motion to be treated as dismissed. :5: 7. Let the suit be listed before the appropriate Court for directions on 11th June, 2009. 8. Notice of Motion to stand disposed of. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)