1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3577 OF 2008 IN SUIT NO. 1713 OF 1993 . Sanjay Ramesh Patil and anr. : Plaintiffs. Versus Smt.Geeta Ramesh Patil & ors. : Defendants. Ms.A.S.Malvankar for the Plaintiffs None for the Defendants. CORAM : R.M.SAVANT, J DATED : DECEMBER 03, 2008 P.C. 1. Heard the learned counsel for the Plaintiffs. The learned counsel for the Plaintiffs tenders Affidavit of Service dated 19th November 2008. None appears for the Defendants though served. 2. By the above motion, the Plaintiffs seek condonation of delay of 10 years and 3 months in filing the above Notice of Motion which has been filed for setting aside the order dated 21st July 1998 2 dismissing the above suit for default. The Plaintiffs have filed the above suit, claiming their share in the suit properties as the heirs of their father. 3. In the said suit, the Plaintiffs had filed Notice of Motion No.1157 of 1993 for interim reliefs. By an order dated 16th August 1996 a learned Single Judge of this Court made the said Notice of Motion absolute in terms of prayer clause (a), thereby injuncting the Defendants from dealing with the properties in question. The suit thereafter appeared on Board on 21st July 1998., But on account of non-appearance of the Plaintiffs' counsel, the suit came to be dismissed for non-prosecution. 4. It is the case of the Plaintiffs that after the said injunction was granted in favour of the Plaintiffs by a learned Single Judge of this Court, the Plaintiffs were labouring under an impression that the Suit would take some time to again come on board. It is further the case of the Plaintiffs that the Defendant No.1 i.e. the Mother of the Plaintiffs died on 29th July 2008 leaving behind the Plaintiffs and the 3 Defendant Nos.2 and 3 as her legal heirs. Since the Defendant Nos. 2 and 3 started giving threats that they would dispose of the suit properties, the Plaintiff No.1 addressed a letter to the Secretary of the Society on 1st September 2008 informing him as regards the order of injunction passed by this Court in the above Suit. It appears that the Secretary of the Society informed the Defendant Nos.2 and 3 of the letter received from the Plaintiff No.1 upon which the Defendant Nos.2 and 3 informed the Secretary that there are no orders running against them as the suit has already been dismissed for default on 21st July 1998. 5. The Plaintiff No.1 having come to know the said fact immediately rushed to his advocate who, after taking a search of the papers in this Court, informed the Plaintiff No.1 that the suit in fact was dismissed for default on 21st July 1998. It is the case of the Plaintiffs that they were totally unaware of the suit being dismissed for default and became aware only when the Defendant Nos.2 and 3 started giving threats that they would dispose of the suit properties after the death of their mother. It is the case of the Plaintiffs that for 4 non-appearance of the advocate on 21st July 1998, they should not be made to suffer and as regards delay, it is the case of the Plaintiffs that they became aware and acquired knowledge of the dismissal of the suit only after the death of their mother on 29th July 2008 and after the Defendant Nos.2 and 3 started giving threats that they would dispose of the suit properties. 6. The Plaintiffs have filed Affidavit of their advocate Shri.M.K.Phal dated 2nd December 2008 who was appearing for the Plaintiffs in the said Suit. The said Advocate also supports the case of the Plaintiffs. 7. In my view, this is a fit case wherein the reliefs sought by the Plaintiffs ought to be granted in the facts and circumstances of the case mentioned in the Affidavit in support of the Notice of Motion and the Affidavit filed by the Advocate Shri Phal. 8. The above Notice of Motion is therefore made absolute in terms of prayer clauses (a) and (b). 5 9. By way of Prayer clause (c) the Plaintiffs seek restoration of the order dated 16th August 1996 passed in the Notice of Motion 1157 of 1993. The learned counsel for the Plaintiffs states that the suit properties are as yet not disposed of. Only on the basis of the said statement, that the relief in terms of prayer clause (c) of the Motion is granted thereby restoring the order dated 16th August 1996. 10. The above Notice of Motion to stand disposed of. [R.M.SAVANT, J]