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.422 of 2008. NOTICE OF MOTION NO.422 of 2008. NOTICE OF MOTION NO.422 of 2008. IN IN IN SUIT NO.1021 of 2002. SUIT NO.1021 of 2002. SUIT NO.1021 of 2002. Arvind N. Dattani ..Plaintiff versus Jayandra K. Dattani & Ors. ..Defendants Mr.S.D.Mogre for the Plaintiff None for the Defendants though served CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 16th Oct., 2008. DATED : 16th Oct., 2008. DATED : 16th Oct., 2008. P.C. . This motion is taken out by the plaintiff for setting aside the Order dated 28.1.2008 passed in Motion No.2196 of 2007 taken out by the defendant No.1 thereby rejecting the plaint under Order VII Rule 11 of CPC. No affidavit in reply is filed though the motion is served. 2. I have heard learned Advocate Mr. Mogre. The Motion No.2196 of 2007 was on board on 28.1.2008 and nobody appeared on behalf of the plaintiff. The clerk attending to the matter of the learned Advocate for the plaintiff by name Mr. Molawade has filed affidvit stating therein that through oversight he could not locate the motion -2- which was listed on the board on 28.1.2008 and that is why he could not inform learned Advocate Mr.Mogre about the said matter being posted on boarde. Learned Advocate Mr.Mogre submitted that because his clerk could not locate the matter on board, he was not informed about the matter and therefore the matter was not attended either by the plaintiff or by his advocate and that the motion came to be disposed of in the absence of the plaintiff. Learned Advocate mr. Mogre submits that by Order dated 28.1.2008 the plaint of the plaintiff has been rejected. He submitted that in the peculiar circumstances in which the matter came to be disposed of, the same is required to be restored by setting aside Order dated 28.1.2008 and a chance should be given to the plai ntiff to advance their submissions before the Court. He submitted that this motion be made absolute to enable the plaintiff to contest the motion No.2196 of 2007. 3. I have perused the record and I am satisfied about the submissions made by learned Advocate Mr. Mogre . I am inclined to accept the submission of learned Advocate Mr.Mogre that -3- because the clerk could not know about the matter, he could know about it which resulted in the plaintiff or the advocate remaining absent. In my view the plaintiffs must get a chance to contest the motion No.2196 of 2007, and I am inclined to make this motion absolute in terms of prayer clause (a) and restore the said motion to the file of this Court for hearing on merits. Hence the Order. ORDER . Motion is made absolute in terms of prayer clause (a) with no order as to costs. . Motion No.2196 of 2007 is restored to the file of this Court. The same now stands adjourned to 21.11.2008. If the plaintiff has not filed any affidavit in reply to the Notice of Motion they should file it directly in the Court on 21.11.2008 and give copy of the same to the defendant No.1 on or before 14.11.2008. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)