1 NMW-239-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.239 OF 2011 IN CONTEMPT PETITION NO.26 OF 2010 IN WRIT PETITION NO.2374 OF 2006 A.R.Choudhary and ors. ..Petitioners Vs Vimal Shah and ors. ..Respondents -- Mr.Sachin Dhakephalkar, for petitioners. Ms.Dhwani Mehta a/w.M/s.Dhruva & Partners, for respondents. -- CORAM : R.G.KETKAR, J. DATE : 22nd JULY, 2011 P.C: This Motion is taken out by the applicants for recalling order dated 25th March, 2011 passed by this Court whereby Contempt Petition No.26 of 2010 was dismissed in default. Mr.A.R.Choudhary- petitioner no.1 has made affidavit in support of this Motion. In paragraph 10 of the affidavit, it is averred that Contempt Petition was listed on 25 th March, 2011 for admission at serial No.45. When the matter was called out, petitioners’ advocate could not attend the matter as his father was admitted in hospital at Pune, for which he had to leave for Pune. It is further averred that Junior of petitioners’ 2 NMW-239-2011.sxw advocate was present on that date in the Court, but, at 5:00 pm. serial No.41 was going and therefore, Junior of petitioners’ advocate left the Court Room and thereafter, immediately the matter was called out and it was dismissed in default. It is in these circumstances, prayer is made for recalling order dated 25th March, 2011 and for restoration of Contempt Petition. 2] On behalf of respondents, Ali Murtaza has filed affidavit dated 15 th July, 2011. In paragraph 14 of the affidavit in reply, it is averred that he is not aware that the father of the petitioners’ advocate was admitted in hospital. He was also not aware that the advocate for petitioners had to go to Pune. It is further averred that the advocate for petitioners was aware that the matter was listed for admission at Serial No.45 on board on 25th March, 2011. It is incorrect to say that Serial no.41 was going on before the Court at 5.00 pm. It is claimed that the matter at Serial No.45 i.e. Contempt Petition No.26 of 2010 was called out around 4.50 pm and no one was present on behalf of the petitioners, therefore Contempt Petition came to be dismissed. 3] Heard Mr.Sachin Dhakephalkar, learned counsel for the petitioners and Ms.Dhwani Mehta, learned counsel for the respondents. 4] The learned counsel for the respondents strenuously 3 NMW-239-2011.sxw contended that the petitioners are contending that Contempt Petition No.26 of 2010 was called out after 5 pm and, thereafter, it was dismissed in default. In the first place, this is completely incorrect in as much as the Contempt Petition was called out at 4.50 pm on 25th March, 2011 and not at 5.00 pm as contended in the affidavit. Secondly, she further contended that the petitioners are, in fact, in contempt when they contend that the Court dismissed the Contempt Petition after 5 pm on 25 th March, 2011. She therefore submitted that no case is made out for recalling the order dated 25 th March, 2011 and for restoring the Contempt Petition. 5] I have considered the submissions made by learned counsel for the parties. In paragraph 10 of the affidavit in support of Notice of Motion, the petitioners have averred that their advocate had to leave the Court and leave for Pune as his father was admitted in hospital. This statement is not denied by the respondents. The learned counsel for the respondents contended that the petitioners are, in fact, in contempt as they have alleged that the Contempt Petition was called out after 5 pm and was thereafter dismissed in default. 6] Basically, the petitioners have explained absence of their advocate on 25 th March, 2011 and because of the personal difficulty of the petitioners’ advocate, he could not attend the matter. Once that fact is not disputed, in my opinion, interest of justice would be 4 NMW-239-2011.sxw met by restoring Contempt Petition. Whether the matter was called out at 4.50 pm or after 5 pm is not material once it is established that the advocate for petitioners was unable to attend the matter when it was called out. Even accepting that the Contempt Petition was called out 4.50 pm, I am of the opinion that a case is made out for recalling the order dated 25 th March, 2011 and consequently, for restoration of Contempt Petition. 7] In the result, Notice of Motion is made absolute in terms of prayer clause (a). Contempt Petition No.26 of 2010 is restored to the file. [R.G.KETKAR, J.]