ash 1 296ao-321.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO. 321 OF 2006 Shri Pyarelal Ramnaresh Gupta & Anr. .. Appellants. Vs Shri Durgaprasad Ramnaresh Gupta. .. Respondent -- Shri G.V. Pandya for the Appellants. None appears for the Respondent. -- CORAM ; A.S. OKA, J DATED : 30TH MARCH, 2011 JUDGMENT: . Called out for final hearing. Heard learned counsel appearing for the Appellants. The Appellants are the original Plaintiffs. None appears for the Respondent. The Appellants have challenged the order dated 5th April, 2006 passed on the Notice of Motion No.1036 of 2006 which was taken out by the Appellants for restoration of the suit which was dismissed in default on 16th December, 2005. By the impugned order, Notice of Motion has been dismissed. 2. Learned counsel appearing for the Appellants has invited the attention of the Court to an order of dismissal dated 16th December, 2005. He pointed out that there was no question of service of writ of summons in view of the order dated 20th October, 2005 passed by the ash 2 296ao-321.06 Trial Court on Notice of Motion No.2528 of 2005. He submitted that the suit ought to have been restored. 3. I have given careful consideration to the submissions. The suit filed by the Appellants was earlier dismissed in default on 6th October, 2004. Notice of Motion No.2528 of 2005 was taken out by the Appellants to set aside the order of dismissal. The said Notice of Motion was made absolute by an order dated 20th October, 2005. 4. Though the clause 4 of the said order records that the suit was kept for service of writ of summons, the subsequent part of the order records that both the Appellants and the Respondent-Defendant agree to go before the co-ordinator for facilitating appointment of a mediator. The subsequent part of the order shows that after restoration of the suit, the Respondent-Defendant waived service of writ of summons. Otherwise, there was no occasion for the Respondent- Defendant to agree to go before the co-ordinator for the purpose of appointing a mediator. While dismissing the suit on 16th December, 2005 on the ground of non service of writ of summons, the learned Trial Judge has taken a very hyper technical view. In fact, the Respondent- Defendant was appearing in the suit and the Advocate for the Defendant was present when the suit was dismissed. Considering these aspects, it is obvious that while passing the impugned order, the ash 3 296ao-321.06 learned Trial Judge has taken a very erroneous view of the matter. Hence, the Appeal must succeed and I pass the following order. ORDER (a) The impugned order dated 5th April, 2006 is quashed and set aside and the Notice of Motion No.1036 of 2006 is made absolute in terms of prayer clauses (a) and (b) thereof. (b) No orders as to costs. ( A.S. OKA, J )