: 1 : SD 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.2114 OF 2005 OF MOTION NO.2114 OF 2005 OF MOTION NO.2114 OF 2005 IN IN IN SUIT SUIT SUIT NO.2622 OF 1995 NO.2622 OF 1995 NO.2622 OF 1995 Sudhabai N. Pupala & Anr. ...Plaintiffs V/s. Vijay N. Pupala & Ors. ...Defendants Mr.Sandeep Parekh, Advocate, i/b. Shamlal & Co., for the Plaintiffs. Ms.K.C. Nichani a/w. R.C. Nichani, Advocates, for the Defendants. CORAM CORAM CORAM : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. DATE DATE DATE : 14TH AUGUST, 2008. : 14TH AUGUST, 2008. : 14TH AUGUST, 2008. P.C.: P.C.: P.C.: . This Notice of Motion is taken out by the Plaintiffs for setting aside the order dated 23rd November, 2000 dismissing the Suit No.2622 of 1995 in default and to restore all interim orders. The Plaintiffs have also applied for condonation of delay that has been occurred in taking out the above Notice of Motion. 2. The Plaintiffs stated that the Suit was filed in 1995 and the Plaintiffs took out the Notice of Motion No.1920 of 1995 for interim reliefs. The said Notice of Motion was finally : 2 : decided on 15th December, 1997. The Plaintiffs stated that after the disposal of the aforesaid Notice of Motion, their earlier Advocate informed them that the Plaintiffs were not required to do anything in the matter till the Suit reaches the stage of recording evidence. So the Plaintiffs did not take any steps in the matter. On 17th July, 2004, when the Plaintiffs met the earlier Advocate for some other work, they also made enquiry about the status of the Suit. The Advocate assured them that they would make enquiry through his clerk and inform the status of the suit. At the request of the Advocate, the Plaintiffs again approached the Advocate and his clerk on 30th July, 2004 when the Plaintiffs were told that the Suit came to be dismissed for default on 23rd November, 2007. The Plaintiffs stated that the clerk of the Advocate who was a full time employee of the Advocate since 1995 was watching the board of the original side and probably missed to notice the name of the Advocate on the board for the day on 23rd November, 2000. It is because of his lapse the Advocate did not appear before the learned Prothonotary and Senior Master and the Suit came to be dismissed. : 3 : 3. In view of this, the Plaintiffs took out the Notice of Motion No.2465 of 2004 for restoration of the Suit but the Plaintiffs could not serve the Defendants because the registered packets containing notices sent to Defendant Nos.3 to 5 came back unserved with postal remark "left". The learned Counsel for the Plaintiffs, therefore, withdrew the said Notice of Motion for non-service and obtained liberty to file fresh Notice of Motion on 24th June, 2005. Thereafter, the present Notice of Motion was taken out on 26th July, 2005. 4. The Defendant No.1 submitted affidavit to oppose the Notice of Motion (the affidavit was filed in the earlier Notice of Motion No.2465 of 2004 and the same is read in the present Notice of Motion as reply). In this reply, the Defendant No.1 indicated that the Plaintiffs and their Advocate were negligent in attending the case. He also stated that even the Writ of Summons, which was required to be served on the Defendants after disposal of the Notice of Motion, was not served. He said the : 4 : Notice of Motion is taken out to continue the harassment which the Plaintiffs started by filing of the Suit. He thus contested the assertions of the Plaintiffs that there was sufficient cause for the learned Counsel for the Plaintiffs for not attending the case on 23rd November, 2000 before the learned Prothonotary and Senior Master. 5. I heard the learned Counsel for both the parties and the question is whether prima-facie the Plaintiffs make out a case that the Plaintiffs and his Advocate were prevented by just and sufficient cause from remaining present before the learned Prothonotary on 23rd November, 2000. The second question is whether case of the Plaintiffs that he learnt about the dismissal order only on 30th July, 2004 is prima-facie believable. 6. I am inclined to believe the Plaintiff’s case as regards his and his Advocate’s absence before the learned Prothonotary and Senior Master on 23rd November, 2000. It is pertinent to note that the initial contest in the Suit came to an end when the Notice of Motion No.1920 : 5 : of 1995 came to be decided way back in 1997. Thereafter, the Plaintiffs Advocate was supposed to look after the progress of the Suit, he had to attend to formalities such as service of Writ of Summons etc. It is seen that on two occasions the Suit was listed before the learned Prothonotary and Senior Master for completing the formalities like service of Writ of Summons etc. On both the occasions the Plaintiff’s Advocate remained absent. The question is why the Plaintiffs Advocate could not remained present before the learned Prothonotary and Senior Master atleast on the last day. The explanation offered by the Plaintiffs and the learned Advocate’s clerk is mentioned above. The Plaintiffs and by implication, the Plaintiff’s earlier Advocate are trying to blame the clerk of the Advocate for this lapse. They said the clerk did not notice the case on the printed board. No doubt an Advocate’s clerk is supposed to be diligent and must notice the cases listed on daily boards and should make necessary arrangement to keep the matter ready. In this case, the clerk could not notice the case on the board and the dismissal of the Suit became inevitable. I am rather inclined to : 6 : believe this case despite Ms.Nichani’s staunch opposition. She rightly contended that the lapse on the part of the Advocate or his clerk cannot be taken leniently. But when the lapse is jeopardising the client’s interest, the Court would come to the help of such client. In this case it was indeed not possible for the Plaintiffs to attend the matter personally. They heavily relied on their Advocate’s skill and if the Advocate or his clerk did not act proficiently, the Plaintiffs should not be made to suffer. 7. In view of the above findings, there is no difficulty in believing the Plaintiff’s case that it was only on 30th July, 2004, they learnt about the impugned order which came to be passed way back on 23rd November, 2000. It was indeed necessary for the Plaintiffs thereafter to take steps within 30 days to move an application for setting aside the impugned order. Even here the Plaintiff was unfortunate. The first Notice of Motion No.2465 of 2004 came to be withdrawn because the Plaintiff’s Advocate could not serve the said Notice of Motion on the Defendants and ultimately was constrained to withdraw the said : 7 : Motion. Fortunately the Plaintiffs secured liberty to file the present Notice of Motion. This Notice of Motion also got delayed by about two days. But I am not inclined to hold that against the Plaintiff, being only of two days and having regard to the previous circumstances the delay deserves to be condoned. Hence the order. :: :: :: O R D E R :: O R D E R :: O R D E R :: The Notice of Motion is made absolute in terms of prayer clauses (a) and (b). [A.V. [A.V. [A.V. NIRGUDE, J.] NIRGUDE, J.] NIRGUDE, J.]