1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO.1573 OF 2009 IN SUIT NO. 2191 OF 1986 Dr.Anup Dinkar Arya & anr. .... Plaintiffs vs Dr.Umanglal Chhotlal Mehta ... Defendant Mr. V. R. Dhond i/b. M/s.Hariani & Co. for the plaintiffs. Mr.Vaibhav Mehta with Mr.Nityananthi Nadar i/b.M/s.S. Saml & Co. for the defendant . CORAM: ANOOP V. MOHTA, J. DATE : 16th July, 2009 P.C.: 1 Leave to amend the prayer in the notice of motion is granted. 2 The plaintiffs’ Suit is for partition which was dismissed on 22nd June, 2006 as the statement was made by the learned counsel for the plaintiff that there were no instructions. The plaintiffs and defendant were absent. 3 As Chamber Summons No.198/2008 was taken, by Order dated 27.01.2009 the Court has dismissed the same as Suit itself was dismissed. There was no reason to take out that chamber summons, if the fact of dismissal was known to the plaintiffs. The averments so made/referred read with the Advocate’s letter shows that there is a default on the part of Advocate. There will be great injustice and hardship to the plaintiffs because of default of the Advocate. 2 4 There is a substance in the submission made on behalf of the learned counsel for the respondents that there is no material placed on record to support that he was out of India for a long period, but considering the averments and in view of the averments with regard to the non-communication, I see that there is no reason not to grant opportunity to the plaintiffs to proceed with the matter. Ultimately, it is a partition Suit and it is in the interest of both the parties that they should participate and proceed with the main matter. It also seems that they are in relation. The Apex Court in Raj Kishore Pandey v. State of U.P. & ors., AIR 2009 SC 1640, has observed while restoring the matter as under : “10. .... No doubt, the consideration of the existence of sufficient cause is the discretionary power with the court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the court in such matters should be to advance the cause of justice and not the cause of technicalities. A case as far as possible should be decided on merits and the party should not be deprived to get the case examined on the merits.” 5 Therefore, considering the averments made and in the interest of justice, this Notice of Motion is allowed in terms of prayer (a) and (b). However, this is subject to cost of Rs.10,000/- to be paid within seven days as a condition precedent. 6 The learned counsel for the respondent submitted that the effect and operation of this order be stayed. 7 Considering the facts and circumstances, there is no case made out to stay this order. The submission is accordingly rejected. (ANOOP V. MOHTA, J.)