1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.106 OF 2008 IN SUIT NO.22 OF 2002 IN PETITION NO.736 OF 2001 Anthony Cruz Chettiar ..Plaintiff V/s Asunta James & ors .. Defendants Mr.Gopal Hegde, Advocate, for the plaintiff Mr.N.J.Patil i/b.Mr.Mohan Shetty, Advocate, for the defendants CORAM : R.M.SAVANT, J. DATE : 11TH DECEMBER, 2008 P.C. . By the above Motion, the plaintiff seeks restoration of the above suit which has been dismissed for non-prosecution on 11th April, 2008. 2. The above suit arises out of Probate Petition No.736 of 2 2001, filed by the plaintiff for issuance of probate in respect of the last will and testament dated 15th February, 1999 of his deceased father S. Siluvai Muthu Chettiar @ S.S.M. Chettiar, who expired on 22nd October, 2000. The Testamentary Suit had come up for hearing on 11th April, 2008 when on account of non-appearance of the advocate for the plaintiff on the said day as also on the earlier date i.e.13th December, 2007, the suit came to be dismissed for non-prosecution. 3. It is the case of the plaintiff that he was informed by his advocate, that the above suit would come up for hearing in due course after a couple of years and that he should make enquiries with the advocate intermittently. It is the case of the plaintiff that he made enquiries with the advocate on 2nd August, 2008, when he was told by the advocate to enquire with the computer section of this Court. Accordingly, on making enquiries with the computer section, the plaintiff was shocked and surprised to know that the suit was already dismissed for non-prosecution on 11th April, 2008. The plaintiff thereafter, applied for an authenticated copy of the said order dated 11th April, 2008 and after applying for a certified copy through his 3 earstwhile advocate the plaintiff has filed an instant application on 7th August, 2008 i.e.almost within six days of coming to know of the dismissal of the suit. 3. In my view, considering the reasons mentioned in the affidavit-in-support, case for restoration is made out. The Notice of Motion is, therefore, allowed and made absolute in terms of prayer clauses (a) and (b). Resultantly the suit is restored to file. The plaintiff is directed to pay costs of Rs.1000/- to the defendants to be sent to the learned advocate for the defendants within a period of four weeks from date. (R.M.SAVANT, J.)