-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 457 OF 2008 Sharada Erectors Private Limited ...Petitioner versus Sudhakar Chintaman Soman ...Respondent Mr. K.Y Mandlik for the petitioner. Mr. S.S. Patwardhan for the respondent. CORAM: P.B. MAJMUDAR, J. DATE: NOVEMBER 21, 2008. P.C. By filing this petition under Article 227 of the Constitution of India, the petitioner, who is the defendant in Special Civil Suit No. 940 of 2001, has challenged the order dated 11th April, 2007, passed by the trial Court below Exhibit-1 in the suit by which the learned trial Judge has restored the suit by setting aside the order of dismissal of suit. 2. The respondent herein is the original plaintiff in the aforesaid suit. The said suit is filed for recovery of Rs. 50,43,400/- towards brokerage in real estate agency. The said suit is resisted by the petitioner by filing written statement in the suit. In the suit, issues were framed by the trial Court on 11th June, 2004. Thereafter on 13th September, 2004, the suit was dismissed as neither the plaintiff nor his advocate remained present before -2- the Court to proceed with the suit. Thereafter on 12th October, 2004, an application was preferred for restoring the suit on file. The application was filed by the Advocate for the original plaintiff. The said application was numbered as Miscellaneous Application No. 692 of 2004. The learned trial Judge restored the suit by passing the impugned order at Exhibit-1 dated 11th April, 2004. The defendant has challenged the said order by filing this writ petition. 3. Mr. Mandlik, learned counsel appearing for the petitioner, has vehemently submitted that the application filed before the trial Court was not maintainable as the said application was signed by the Advocate and not by the Plaintiff. As against that, the learned counsel appearing for the respondent has submitted that since at the relevant time the plaintiff was out of the country, the application was submitted by the advocate for the plaintiff in order to see that the application is not delayed. It is submitted that the plaintiff has also filed an affidavit at a subsequent stage. 4. I have heard the learned counsel appearing for the parties. It is true, as argued by the learned counsel for the petitioner, that the application ought to have been signed by the plaintiff himself, however, in my view, when the application was submitted within a period of one month from the dismissal of the suit and subsequently an affidavit has been filed by the plaintiff stating that whatever stated in the application is correct, this is not a -3- case in which this Court would like to exercise its extraordinary jurisdiction under Article 227 of the Constitution of India by interfering with the impugned order. The plaintiff has filed the suit for getting money decree after paying substantial court fee and within a period of one month, application for restoring the suit has been filed. Since the plaintiff was not in the country at that time, he has filed an affidavit stating that the averments in the application are correct. 5. Considering the aforesaid aspect of the matter, this is not a case in which the extraordinary jurisdiction of this Court is required to be exercised especially when there is nothing on record to show that the plaintiff was negligent in pursuing the suit or he had no interest in proceeding with the suit. The impugned order, therefore, requires no interference in the extraordinary jurisdiction of this Court. Hence the petition is rejected. Notice discharged. No order as to costs. P.B. MAJMUDAR, J.