:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 3575 OF 2008 OF MOTION NO. 3575 OF 2008 OF MOTION NO. 3575 OF 2008 IN IN IN SUIT SUIT SUIT NO. 1596 OF 1998 NO. 1596 OF 1998 NO. 1596 OF 1998 Hilla Savak Merchant & Ors. ... Plaintiffs. V/s. Kersy Hoshang Merchant. ... Defendant. And Tehmton Ardeshir Irani & Ors. ... Respondents. Mr. Pradeep Bakharu i/b. Lokhandwala & Co. for the Plaintiffs. Mr. D.H. Mehta i/b. B.H. Vyas for the Defendant. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 20TH 20TH 20TH OCTOBER 2008. OCTOBER 2008. OCTOBER 2008. P.C. P.C. P.C. : : : . This is a Motion for restoration of the Suit which was dismissed for want of prosecution on 5th July 2007. 2. The learned Advocate appearing for the Plaintiffs was out of India from 18th May 2007 to 2nd September 2007 and although, the matter was entrusted to Junior, none was present and that is why the Suit has been dismissed. 3. It is stated that when the Suit was dismissed, the Defendant was also absent. In the affidavit in support of the Notice of Motion, it is pointed out that even Written Statements are not filed by some of the Defendants. :2: 4. Mr. Mehta, learned Advocate appearing for the Defendant - Kersy Hoshang Merchant has stated that the Defendant has filed an affidavit opposing the restoration of the Suit. Mr. Mehta submits that there was a Notice of Motion moved in the matter and the same was withdrawn after a statement was made that the matter has been settled out of Court. In these circumstances, when other Advocate to whom the matter was entrusted has not filed any affidavit would show that no sufficient cause is made out and therefore, the Motion be dismissed. 5. Having perused the affidavit in support of the Motion, the reply and rejoinder, I am of the view that the Plaintiffs need not suffer only because their Advocates could not attend the matter. Even the explanation given about non attendance of the Advocate as he was out of India has not been denied but it is contended that the Junior Advocate to whom the matter was entrusted should have filed an affidavit. 6. In my view, applying the liberal principles applicable to such proceedings and not taking a technical view, the Plaintiffs deserve one more chance for proceeding with the Suit. The interest of justice would be sub-served if the restoration is granted on some terms. :3: 7. Accordingly, the Notice of Motion is made absolute in terms of prayer clause (a) and on the condition that the Plaintiffs to pay a sum of Rs.2,500/- to the Defendant within a period of two weeks from today, the Suit to stand restored to file. The order dated 5th July 2007 will then be quashed and set aside. 8. In default, the said order stands and even this Notice of Motion will then be dismissed without any further reference to the Court. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)