IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1734 of 2008. NOTICE OF MOTION NO.1734 of 2008. NOTICE OF MOTION NO.1734 of 2008. IN IN IN SUIT NO.12 of 1986. SUIT NO.12 of 1986. SUIT NO.12 of 1986. Basil Shamrao Rath & Others ..Plaintiffs versus Chandrakant V.Patil & Others ..Defendants Mr.R.S.Tripathi for the Plaintiff Mr.Uday Bobde i/b. Desai & Desai for the Defendant No.2 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 15th December, 2008. DATED : 15th December, 2008. DATED : 15th December, 2008. P.C. 1. This motion is taken out to have Order dated 13.1.2006 set aside. It is also prayed for delay of two years, three months and odd days be condoned. 2. Affidavit in reply is filed by defendant No.2 opposing the motion. This motion is taken out by the plaintiffs and affidavit in support is filed by the plaintiff No.1. In the affidavit in support of the motion it is admitted that the plaintiffs -2- received the papers from the earlier Advocate in January 2005 and no advocate was engaged to appear in the matter. It is admitted by the counsel for the plaintiffs in the course of hearing that no application was filed before the Court seeking legal aid. Consequently, plaintiffs remained unrepresented before the Court. Plaintiffs claim that Writ Petition No.993 of 1984 was decided on 23.1.2008 and that Plaintiffs came to know that this suit has been dismissed on 13.1.2006. Hence the motion came to be taken out in the month of May 2008 after obtaining certified copies of the papers. 3. After having considered the rival submissions, I am inclined to observe that the plaintiffs’ conduct clearly goes to show that the plaintiffs were negligent in attending to the matter. After having received the papers from the advocate in January 2005 no steps were taken by the plaintiffs to attend to the matter in as much as the learned Advocate for the plaintiffs had to conceded that the plaintiffs had not come to the office of the court to make enquiries as to at what stage the suit is pending. The stand of the -3- plaintiffs that they came to know about the order on 23.1.2008 and consequently came to know about the dismissal of the suit cannot be accepted. 4. In the affidavit in support, the reasons mentioned for not contacting the advocate are (a) joblessness on the part of the plaintiff No.1, (b) financial crunch and mental tension. Another ground was pleaded that plaintiff No.1 changed his residence from Dadar to Mahim. These grounds, in my view, do not make out a case to say that the plaintiffs had good reason to stay away from the Court/litigation and allow the litigation to proceed in its way. The least the plaintiffs could have done was to make an application to the Court for legal aid. That also has not been done. It is pertinent to note that in the present case three persons have instituted this suit. No specific explanation is coming as to what was being done from plaintiff Nos.2 and 3 who were equally responsible to attend to the matter when the suit was filed by all three of them. Taking an overall view of the matter, it is clear that the plaintiffs have not acted in a deligent manner. If the plaintiffs were so concious about their rights, -4- they should have attended to the matter and done something to see that the litigation is attended to. 5. It was submitted by the learned Counsel for the plaintiffs that by directing the plaintiffs to pay some cost, the matter can be restored. In my view, this is not a case where cost would substitute the negligent conduct on the part of the plaintiffs. In my view, this is not a case where the plaintiffs can be granted relief by putting them to terms as regards costs. 6. For the reasons mentined aforesaid, I am inclined to dismiss the notice of motion. Hence the Order. ORDER . Motion is dismissed. . In the peculiar facts and cicumstances of the case, there shall be no order as to costs. -5- (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)