1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4121/2005 IN SUIT No.2614/1983 Khodadad Khodabux Irani. ..Plaintiff -VERSUS- Murvarid Khodaram Irani and another. ..Defendants -AND Shahrukh Khodadad Irani and others. ..Applicants. ............... Mr.Adernbad Khodadad Irani, Applicant No.2 present in person. Ms.Swadha Srivastava, Advocate i/b S.P.Bharti, Advocate for the Defendant No. 2. ............... CORAM: A.P.DESHPANDE, J. 29th June, 2009. PC:- 1 The original Plaintiff by name Khodadad Khodabux Irani instituted a suit for dissolution of the partnership firm carrying on business in the name and style M/s New Star of India Restaurant. During the pendency of suit, the original Plaintiff had taken out the Notice of Motion bearing No. 87/1984 inter-alia for appointment of the Court Receiver for the partnership business. This Court by an order dated 13.07.1984 appointed the Court Receiver, High Court of Bombay. It also appears that on motion moved by the Plaintiff, royalty amount was fixed and made payable by the Defendant No.2 as he was permitted to carry on the business and certain percentage of the amount to be deposited by the Defendant No.2 was permitted to be withdrawn by the Plaintiff and the Defendant No.1. In this fact situation, the Defendant No.1 expired on 30.07.1990 whereas the Plaintiff expired on 21.10.1991. The present Applicants took out the Chamber Summons bearing No.59/1992 for 2 bringing the names of legal representatives and heirs of the Plaintiff on record. The Chamber Summons was allowed. However, thereafter, no steps are taken and the plaint is also not amended. The legal representatives and heirs of the Defendant No.1, as well, moved the Chamber Summons No.417/1992 for bringing their names on record as L.Rs. of the Defendant No.1, that Chamber Summons was also allowed. Both the Chamber Summons were allowed on 28.04.1992. 2 These facts are stated by filing an affidavit by the Applicants which are not disputed by the learned counsel appearing for the Defendant No. 2. It appears that from the year 1993 onwards the matter was not attended by the counsel for the original Plaintiff and his L.Rs.. Ultimately, this Court by an order dated 08.08.2005 dismissed the suit for non-prosecution after observing in the order that as the Advocate was not appearing for the Plaintiff the Court had directed the Defendants’ Advocate to issue notice to the Plaintiff’s Advocate, however, the letter sent by the Advocate for Defendants was returned back with an endorsement that the Plaintiff’s Advocate has shifted his office. 3 By the present Notice of Motion, the Applicants are seeking various reliefs including condonation of delay, setting aside abatement, restoration of the suit, restorations of the orders dated 30.07.1984 & 19.06.1986 and for permission to carry out amendment as per the order dated 28.04.1992 for bringing the names of L.Rs. of the Plaintiff and the Defendant No.1 on record. The explanation of the present Applicants who are L.Rs. of the deceased Plaintiff in not attending to the suit for a long period is that their Advocate had shifted his office without any intimation to the Applicants and thereafter, the name of Advocate was struck of from the list of registered Advocates of the Bar Council of Maharashtra. According to the Applicants, for the first time in November, 2005 the Applicants received the letter dated 10.11.2005 from the Court Receiver and then the Applicants tried to contact the Advocate but could not succeed as he has changed the address. Without any loss of time, the present Notice of Motion came to be filed in December, 2005. Despite service of notice of this motion, the L.Rs. of the Defendant No.1 have 3 not put in their appearance either in person or through the Advocate. 4 Having regard to the facts set out herein above, it can be safely said that the Applicants herein/ L.Rs. of the original Plaintiff are not guilty of delay and latches. Failure, if any, was on the part of Advocate of Applicants and having regard to the fact that the Advocate had changed his address and debarred as a member of the Bar Council of Maharashtra, the matter went unattended and came to be dismissed. Reliance is placed on the affidavit of the Applicants dated 25.06.2009. Without any loss of time and with due promptness the present Notice of Motion has been moved. I have no iota of doubts that the sufficient cause has been shown for condonation of delay, for setting aside the abatement and for restoration of the suit. In the event if the suit is not restored to the file the Applicants would be put to suffer irreparable loss and undue hardship whereas no prejudice would be caused to the Defendants in the event if the suit is restored. As stated above, the legal representatives and heirs of the Defendant No.1 have not put in their appearance. In all fairness the learned counsel for the Defendant No.2 has not opposed the Notice of Motion, but left it to the Court to deal with the same in accordance with law. 5 Having regard to the totality of the facts and circumstances, the Notice of Motion is partly allowed in the following terms:- (a) The delay is condoned; (b) The order dated 08.08.2005 dismissing the suit for non prosecution is set aside. The suit is restored to file; (c) The abatement is set aside; (d) The Applicants are permitted to carry out the amendment as per the order dated 28.04.1992 passed in Chamber Summons Nos.59/1992 and 413/1992. The Applicants to carry out the amendment within a period of two weeks from today. (e) Re-issue notices to the legal representatives and heirs of the Defendant No.1 returnable in eight weeks. (f) Prayer clause (c) of this Notice of Motion is not pressed at this stage, 4 however, liberty is sought to take out the separate Notice of Motion with prayers contained in prayer clause (c) after the notices are served on the legal representatives and heirs of the Defendant No.1. Liberty granted as prayed for. (g) The motion stands disposed of accordingly. JUDGE (nms4121.05-23/06)