:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER NO.978 OF 2007 APPEAL FROM ORDER NO.978 OF 2007 APPEAL FROM ORDER NO.978 OF 2007 IN IN IN NOTICE OF MOTION NO.2945 OF 2007 NOTICE OF MOTION NO.2945 OF 2007 NOTICE OF MOTION NO.2945 OF 2007 IN IN IN L.C.SUIT NO.1023 OF 2005 L.C.SUIT NO.1023 OF 2005 L.C.SUIT NO.1023 OF 2005 Joybroto S. Biswas & Anr. ...Appellants. v. Municipal Corporation of Greater Mumbai & Ors. ...Respondents. Mr.A.Narula i/b M/s.Jhansiani Narula & Associates , adv. for the Appellants. Mrs.Geeta Joglekar, adv. for the BMC. Mr.M.P.Vashi alongwith Mr.Anand Singh i/by M.P.Vashi & Associates , adv. for the Respondent No.5. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 18th January, 2008. DATE: 18th January, 2008. DATE: 18th January, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the Parties. 2. The present appeal is filed by the original plaintiffs against the rejection of notice of motion for restoration of their suit, which was dismissed in default on 18-7-2007. The plaintiffs had filed their suit for perpetual injunction against the defendants contending that the plaintiff no.1 is the tenant in the suit premises and the structure standing on the said land is in existence since 1935. According to the plaintiffs there is also a temple situated on the said :2: land and it is also very old. On the other hand, it is the contention of the defendants that under the development plan, this particular piece of land is reserved for recreation ground of the society of which the building has been constructed nearby. The suit was filed in the year 2005 and interim injunction was granted by this Court with direction to expedite trial of the matter. Issues were framed on 15-11-2006 and certain adjournments were taken by the plaintiffs for filing affidavits of the plaintiffs in examination-in-chief. It appears that number of times matter was adjourned as a last chance even on the threat that if the affidavit is not filed on the next date, the suit would be dismissed. On 18-7-2007, advocate for the plaintiffs was present but no affidavit was filed and the suit came to be dismissed in default. Thereafter, Notice of Motion No.2945 of 2007 was taken out on behalf of the plaintiffs for setting aside the order of dismissal. Notice of motion was taken out within the period of limitation in the month of August itself. Notice of motion was opposed and it was contended that taking into consideration the conduct of the plaintiff, the plaintiff did not deserve the order for restoration of the suit. After hearing the parties, the learned trial Court dismissed the notice of motion with cost of Rs.5,000/- The plaintiff has preferred the present appeal against that order. :3: 3. Perused the impugned order as well as Roznama. As pointed out earlier, on 15-11-2006 the issues were framed and the plaintiffs were directed to file affidavit in examination-in-chief alognwith other documents and the matter was adjourned to 24-1-2007. Thereafter on request of the plaintiff, matter came to be adjourned to 28-2-07, 14-3-07, 11-4-2007, 11-6-2007 and finally to 18-7-2007. Thus, in all six adjournments were granted to the plaintiffs to file affidavit but the roznama reveals that the adjournments were sought because of one or the other counts. On 11-4-2007, advocate for the plaintiff had given reason that the constituted attorney of the plaintiff was bedridden and under treatment. In spite of objection taken by the defendant no.5 on that day, adjournment was granted subject to the condition that the medical certificate of the C.A. should be produced on the next date. Again on 11-7-2006 on the medical ground of the C.A. of the plaintiff, adjournment was sought and it was granted as a last chance. On 18-7-07 again neither the affidavit in examination-in-chief was filed nor the medical certificate about the treatment of the C.A. of the plaintiffs was filed and, therefore, the matter came to be dismissed in default. Fact remains that within a few days after dismissal of the suit, notice of motion was taken out and it was contended that the representative of the plaintiff had come to the Court shortly after dismissal of the suit and he had brought medical :4: certificate also. It is true that it is not contended in the notice of motion that on that day the plaintiff had come prepared to file affidavit in examination-in-chief. It is true that the plaintiffs was given number of opportunities and had failed to file affidavit in examination-in-chief but at the same time it has to be noted that atleast three adjournments were taken on the medical ground of the person, whose affidavit the plaintiffs wanted to file. Roznama reveals that Mr.Vashi the learned counsel for the defendant no.5 had argued that the affidavit in examination-in-chief could not be filed by the constituted attorney and that this was not a valid ground. Whether the constituted attorney had personal knowledge about the facts about which he wants to file affidavit, can not be decided till affidavit is filed. Whether he is competent to file affidavit that can be looked into on the basis of affidavit, which he files indicating whether he has personal knowledge about the facts or not. The learned trial Court appears to have dismissed notice of motion mainly because of the conduct of the plaintiffs in respect of certain interim or ad-interim orders. In my considered opinion for the purpose of deciding notice of motion for restoration of the suit, it was not necessary to go into the merits of the claims of the plaintiffs in the suit. That could be done only when the suit was actually taken up for trial. :5: 4. After taking into consideration these circumstances, in my considered opinion, no harm will be caused if the suit is restored and the directions are given for disposal of the same within specified period so that claims of the parties could be decided on merits. Of-course taking into consideration number of adjournments taken by the plaintiff, such order can be passed subject to heavy cost. In my considered opinion, the following order will meet the ends of justice. i. The impugned order is hereby set aside. Notice of Motion is allowed subject to payment of cost of Rs.15,000/- to be paid by the plaintiffs to the defendants. Out of the cost, an amount of Rs.5,000/- shall to the defendant no.1 Municipal Corporation and the balance amount shall go to the defendant no.5. The cost shall be paid within two weeks before filing of the affidavits. If the cost is not paid, this appeal shall be deemed to have been dismissed. ii. L.C. Suit No.1023 of 2005 is hereby restored to the file of City Civil Court, Bombay. The plaintiffs shall file the affidavits in examination-in-chief of all the witnesses on whom they want to rely in the suit within two weeks from this day and they shall appear before the trial Court or if the trial Court so directs before the Commissioner for cross-examination on the specified dates. :6: ii. The trial Court shall dispose off the suit within three months from this day. In case, the plaintiffs fail to file affidavit in examination-in-chief within stipulated period of two weeks, the learned trial Court shall dismiss the suit for want of prosecution. For the purpose of cross-examination of the witnesses of the plaintiffs the defendants also shall not seek any adjournments. Interim relief, which was granted by the trial Court shall remain in force till the disposal of the suit. 5. As the appeal itself has been disposed off finally, the Civil Application does not survive and stands disposed off accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)