: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1491 OF 2009 Mohd. Latif Shaikh & Anr. ... Appellants V/s. M.C.G.M. ... Respondent Mr.J.N. Jayale for Appellants Mr.J.J. Xavier for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: OCTOBER 8, 2009 P.C.: 1. Appeal admitted. By consent appeal is heard forthwith. 2. The plaintiff has filed the present appeal because his suit has been dismissed for want of evidence. The grievance of the plaintiff is that the learned Judge has dismissed the suit despite the fact that an adjournment for filing the affidavit of the plaintiff by way of examination in chief was sought for only one day. It is submitted that the plaintiff had been attending the Court all throughout after filing the suit. The notice of motion was dismissed on 18.8.2009 and the suit was adjourned to 2.9.2009 for recording evidence. On that date, although the plaintiff was absent, his advocate was present. The defendant’s advocate was directed to file a copy of the order passed by the Municipal Commissioner rejecting the proposal made by the plaintiff : 2 : for regularisation of his suit structure. The plaintiff sought an adjournment on that day and the matter was adjourned to 30.9.2009. 3. On 30.9.2009, the plaintiff’s advocate was present and requested an adjournment since the affidavit of evidence though drafted had not been explained to or affirmed by the plaintiff. The plaintiff’s advocate had also stated that the copy of the order passed by the Corporation in respect of regularisation had not been made available to the plaintiff. However, on that date, the learned Judge dismissed the suit for want of evidence. 4. On a perusal of the Roznama in my opinion, the learned Judge has erred in dismissing the suit. It is not as if the plaintiff had been lacking in pursuing the suit or has not been diligent in respect of the present suit. The advocate for the plaintiff had informed the learned Judge that the affidavit of evidence was ready and had merely to be affirmed by the plaintiff after being explained to him. A request was made that the matter should be adjourned to the next day. This was a reasonable request made on behalf of the plaintiff which should have been granted by the learned Judge. The reason for dismissing the suit was that an injunction was running against the defendant Corporation. In my opinion, the learned Judge was too hasty in dismissing the suit when the roznama clearly shows that the plaintiff had not been tardy in pursuing his suit. 5. In these circumstances, the judgment and order of the trial Court dated 30.9.2009 is set aside. Appeal allowed. No order as to costs. 6. The suit is remanded for trial. The parties shall appear before the trial Court : 3 : on 15.10.2009 and the plaintiff will file his affidavit in lieu of evidence on that date itself. The trial Court will proceed with the matter and decide the same within six months from that date. 7. All interim orders which had continued till 30.9.2009 will revive. 8. In view of the First Appeal being disposed of, nothing remains in Civil Application No.3987 of 2009 and the same is disposed of accordingly.