IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3453 of 2005. NOTICE OF MOTION NO.3453 of 2005. NOTICE OF MOTION NO.3453 of 2005. IN IN IN SUIT NO.26 of 2004. SUIT NO.26 of 2004. SUIT NO.26 of 2004. Bhagirathi P. Rajgor ..Plaintiff versus Karasndas Khimji Rajgor ..Defendant Mr.V.S.Paradkar for the Plaintiff Nobody is appearing on behalf of the defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 28th July, 2008. DATED : 28th July, 2008. DATED : 28th July, 2008. P.C. 1. Mr. Paradkar for the plaintiff. Nobody is present on behalf of the defendant. Mr. Paradkar, learned Advocate for the plaintiff submitted that since relief in terms of prayer clause (a) of the motion as regards extension of time to carry out the amendment has already been granted and as the amendment has already been carried out, prayer clause (a) does not survive. 2. Learned Advocate Mr. Paradkar prays for relief in terms of prayer clause (b) i.e. to say setting aside Order dated 13.10.2005 dismissing the Notice of Motion No.77 of 2004 and in addition prays for restoring the said motion to the file of this Court. -2- 3. I have heard learned Advocate Mr. Paradkar on behalf of the plaintiff and have gone through the affidavit in reply filed by the defendant. The notice of motion is dismissed on account of the learned Advocate for plaintiff remaining absent. Prior to 13.10.2005 the notice of motion had come up on number of occassions and it is only on 13.10.2005 the plaintiff and his advocate remained absent. The roznama of this motion for the dates earlier to 13.10.2005 goes to show that the learned Advocate Mr. Paradkar appeared on various dates. This will go to show that the plaintiff and defendant were regular in attending the matter. So far as the absence of the plaintiff and his advocate on 13.10.2005, it has been the stand of the plaintiff that the Advocate’s clerk by name Ankush Shigwan through over sight could not note the matter on board and that is how the said clerk could not inform the said advocate showing the matter on board and instruct him about the matter. The plaintiff has relied upon the advocate’s clerk Ankush’s affidavit which speaks of the bonafide mistake on the part of the clerk of the advocate. The motion is taken out on 14.11.2005. The -3- defendant has opposed the motion denying the averments and the stand of the plaintiff. 4. In my view, if the plaintiff has remained absent only on one occassion, then he cannot be made to suffer dismissal of the motion. In my view the ground is made out for setting aside the Order dated 13.10.2005. I am inclined to accept the stand of the plaintiff that the clerk of the Plaintiff’s advocate could not note the board. To that extent the case is made out by the plaintiff. Hence I am inclined to allow the notice of motion in terms of prayer clause (b). Hence the order. ORDER i. Order dated 13.10.2005 dismissing the Motion No.77 of 2004 is set aside. ii. The said motion is now restored to the file of the Court and is now adjourned to 21.8.2008 for hearing. There shall be no order as to costs. iii. Plaintiff to inform this order to the defendant and his advocate by letter under Certificate of Posting. -4- (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)