1 212 ao.372.05 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 372 OF 2005 Smt. Phulwati wd/o of late Chhabelal Bhagat and anr. ... Appellants Versus Ram Khelawan Dhonde and anr. ... Respondents ­­­­­ Mr. Vivek Kantawala i/b M/s.Kantawala and Company for the Appellants. Mr. R.D.Mishra for the Respondents. ­­­­­ CORAM : A.S.OKA, J. DATE : 02 nd May, 2011. ORAL JUDGMENT: 1 Called out for final hearing. 2 This is an appeal by the legal representatives of the original plaintiff. 3 On 12 th October, 1999, the suit filed by the predecessor of the Appellants was dismissed for non appearance of both the parties. On 2 212 ao.372.05 30 th December, 2001 the original plaintiff expired. On 13 th April, 2004, a notice of motion for restoration of the suit was taken out by the Appellants, who are the legal representatives of the original plaintiff. Apart from the notice of motion, Chamber Summons No.938 of 2004 was taken out by the Appellants on 6 th August, 2004. The prayer in the chamber summons was for transposing the Appellants as the plaintiffs in place of the deceased plaintiff. By the impugned order passed on the aforesaid notice of motion for restoration, the learned trial Judge has dismissed the notice of motion and has declined to restore the suit. 4 The learned counsel appearing for the Appellant pointed out that the original plaintiff died on 30 th December, 2001 and in fact on 20 th February, 2002, an affidavit of the Appellant No.2 was got affirmed by the advocate appointed by the Appellants for the purpose of brining the names of the Appellants on record as the legal representatives of the deceased plaintiff. He pointed out that for the reasons best known to the advocate, the same was not filed. Inviting the attention of the Court to the findings recorded by the trial Court in the impugned order, he 3 212 ao.372.05 submitted that the Appellants are not expected to explain as to why the deceased did not take steps for restoration of the suit. He pointed out that within ninety days from the date of the death of the original plaintiff, the Appellants approached the advocate and an affidavit was affirmed by the Appellant No.2 for bringing the legal representatives of the plaintiff on record and therefore, no negligence can be attributed to the Appellants. He submitted that there was sufficient explanation for delay in taking out notice of motion and therefore, the suit ought to have been restored. He submitted that there is no order has been passed by the learned trial Judge on the chamber summons. The learned counsel appearing for the Respondents has supported the impugned judgment and order. 5 I have considered the submissions. It is true that the affidavit in support of the chamber summons appears to have been affirmed on 13 th April, 2004. Even the said affidavit as well as affidavit in support of notice of motion for restoration disclose that the Appellants learnt about the dismissal of the suit in January 2004. There is nothing brought on record to show that the Appellants had knowledge about the dismissal of 4 212 ao.372.05 the suit any time prior to January 2004. The notice of motion for restoration was taken out by the Appellants in April 2004. It cannot be said that the Appellants were negligent. The execution of the said affidavit dated 20 th February, 2002 shows that within the stipulated period of limitation provided by law, the Appellants approached an advocate for taking necessary steps to bring their names on record. The affidavit also shows that till that day, the Appellants had no knowledge of the dismissal of the suit. 6 The learned trial Judge observed that the Appellants should have explained the reason why the deceased plaintiff did not take steps for restoration of the suit. There is nothing on record to show that the Appellants were aware of the pendency of the suit during the lifetime of the deceased plaintiff. Thus, a hyper­technical approach has been adopted by the learned trial judge. A case for restoration of the suit was made out by the Appellants. 7 Hence, the impugned order will have to be quashed and set 5 212 ao.372.05 aside and the notice of motion will have to be made absolute. The trial Court will have to pass a formal order on Chamber Summons No.938 of 2004 making the same absolute as the learned trial Judge has entertained the notice of motion taken out by the legal representatives of the original plaintiff on merits. 8 Hence, I pass the following order: i. The impugned order is quashed and set aside and the Notice of Motion No. 3091 of 2004 is made absolute in terms of prayer clauses (a) and (b) ; ii. The learned trial Judge will pass formal order on Chamber Summons No. 938 of 2004 making the chamber summons absolute ; iii. Appeal from order is allowed on above terms with no order as to costs. [ A.S.OKA, J ]