:1: 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. 29 OF 2008 OF MOTION NO. 29 OF 2008 OF MOTION NO. 29 OF 2008 IN IN IN SUIT SUIT SUIT NO. 26 OF 2004 NO. 26 OF 2004 NO. 26 OF 2004 IN IN IN TESTAMENTARY TESTAMENTARY TESTAMENTARY PETITION NO. 337 OF 2003 PETITION NO. 337 OF 2003 PETITION NO. 337 OF 2003 Mr. Mohan Kevalram Anand. ...Plaintiff/Petitioner. V/s. Mr. Kishorilal Kevalram Anand & Anr. ... Defendants/ Caveators. Mr. Kawli i/b. K.K. Associates for the Plaintiff / Petitioner. Ms. Annapoorna i/b. Narayan & Narayan for the Defendants. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 03RD 03RD 03RD OCTOBER 2008. OCTOBER 2008. OCTOBER 2008. P.C. P.C. P.C. : : : . This Notice of Motion is by the Plaintiff for recalling the order dated 14th January 2008 dismissing the Suit. 2. The order passed on 14th January 2008 reads as under :- " On 6.12.2007 issues were framed. Plaintiff was directed to file affidavit of evidence in support of suit claim together with original documents, if any within four weeks. Today, plaintiff has :2: neither filed affidavit of evidence nor documents are filed on record in respect of suit claim. Learned counsel for the plaintiff states that she has no instructions on behalf of the Plaintiff. Under these circumstances, suit is dismissed for want of evidence. No order as to costs." 3. There is a preliminary objection raised to the maintainability of the Notice of Motion by Defendant No.1. The learned Counsel submits that the order passed by this Court and reproduced above is dismissal of the suit for want of evidence and in any event traceable to Order 11 Rule 21 of the Code of Civil Procedure and therefore, the remedy of the aggrieved Plaintiff is to file a appeal, and not a motion, for setting aside this order. 4. The learned Counsel appearing for the Plaintiff on the other hand points out that the Plaintiff was taking steps to comply with the orders of this Court issued prior to 14th January 2008 but the Plaintiff is a resident of the United States of America. He was in the U.S.A. at the time of dismissal of the suit. In paragraphs 5 and 6 of the affidavit in support the Plaintiff states thus :- "5. I am a resident in USA and was in USA at the time of dismissal of this Suit. My advocates M/s. Rustamji & Ginwala, Advocates then appearing for me, were not able to contact me to prepare :3: affidavit of evidence as I was in USA and the Advocates were contacting me through my earlier address. However, my earlier advocate ought to have sent a message by a courier or regular mail to my present address or ought to have called me on phone, which was not done. 6. On 23.1.2008, I contacted my earlier Advocate to know about the status of my Suit and I was shocked and surprised to note that my suit had appeared on board on 14.1.2008 and was dismissed for want of evidence. I immediately instructed my advocate, then appearing for me to send a Certified Copy of the order dated 14.1.2008 and it was sent to me on 1.2.2008. I immediately instructed my earlier Advocate to return all the papers and proceedings of my suit and appointed another Advocate to represent me in the above suit." 5. In these circumstances, it is apparent that the Plaintiff’s Advocate could not contact him and that is how there was a communication gap which resulted in non-compliance of the order passed by this Court. 6. Ultimately, this is a suit which has been dismissed for want of prosecution by the Plaintiff. The reasons for dismissal are non-compliance with the order passed by this Court with regard to filing of affidavit in lieu of :4: evidence. By their very nature, such orders and directions are not intended to take away the right of the parties to have an adjudication on merits. These are directions for ensuring compliance with the pre-trial procedural provisions. In non-compliance with procedural provisions is visited with extreme consequences entailing in the dismissal of the proceedings it has the effect of seriously prejudicing the parties. The Court in the interest of justice can issue directions to recall such order. More so, when default is in compliance with the procedural provisions. The learned Counsel appearing for Defendant No.1 does not dispute this Court’s power of recall of its own orders in the interest of justice and with a view to afford the party an opportunity to have an adjudication on merits. 7. In such circumstances, in the facts peculiar to this case, I am of the view that the motion for recalling the order is maintainable. The learned Counsel for Defendant No.1 has not disputed any of the statements, in the affidavit in support. All that has been contended is about the maintainability of the Notice of Motion. 8. In such circumstances, I am of the view that when the Court has dismissed the matter for want of prosecution, it can in a proper case, to secure the ends of justice, recall its own orders. :5: 9. The Notice of Motion is, therefore, made absolute in terms of prayer clauses (a) and (b). However, the affidavit in lieu of evidence if filed, within a period of three weeks from today accompanied by cost quantified at Rs.5,000/- to be paid to the First Defendant, the Plaintiff is granted an opportunity to proceed with the suit on merits. In the result, Motion is made absolute in these terms. Needless to state that in default of compliance of these directions, the order dated 14th January 2008 stands and the Notice of Motion also to be dismissed without any further reference to the Court. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)