1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8911 OF 2009 Bhagwandas T. Vakani and another Petitioners versus Dilip Govindji Joshi and others Respondents Mr.A.S.Khandeparkar i/by Khandeparkar & Associates for petitioners. R.M.Haridas for respondent no.1. CORAM : A.S.OKA, J. DATE : 11th March 2010 PC : 1. Heard learned advocate for the petitioners. Petitioners are the original second and third defendants. First respondent herein is the original plaintiff. The second respondent is the original first defendant. Admittedly, the petitioners are the partners of second respondent (first defendant). The suit was dismissed for non prosecution as against the said first defendant. The order of dismissal was set aside by the Trial Court by order dated 29th March 2008. Thereafter present application was taken-out by the petitioners for setting aside the order dated 29th March 2008 by which the suit was restored as against the first defendant. 2. Learned counsel for the petitioners submitted that on restoration application, the present petitioners were not granted an opportunity of 2 being heard. He pointed out that a fraud has been played upon the Court. He pointed out the report of the bailiff on page 18. He submitted that in any case, without hearing the petitioners, the suit could not have been restored as against 2nd respondent (first defendant). 3. I have considered the submissions. The second respondent (first defendant) is a partnership firm of which petitioners are admittedly partners. The petitioners were served with the suit summons. The Trial Court dismissed the suit as against second respondent on the ground of non service of summons. Thereafter the said order was recalled and the suit was restored. There may be some merit in the contention that notice of restoration of application was not served to the petitioners. However, substantial justice has been done by restoring the suit as against defendant no.1. As pointed out earlier, the petitioners who are admittedly the partners of the firm are served with the summons. 4. This is not a case where interference is called for under Article 227 of the Constitution of India. The writ petition is rejected. (A.S.OKA, J.) 3 mst FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2803 OF 2009 IN WRIT PETITION NO.8911 OF 2009 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr.A.S.Khandeparkar i/by Khandeparkar & Associates for applicant. R.M.Haridas for respondent no.1. CORAM : A.S.OKA, J. DATE : 11th March 2010 PC :- 1. Heard counsel for the parties. Civil Application is allowed in terms of prayer clause (a). (A.S.OKA, J.)