1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.997 OF 2007 IN APPEAL (L) NO.66 OF 2007 IN NOTICE OF MOTION NO.2066 OF 2005 IN SUIT NO.516 OF 1975 Normandie Co-operative Housing Society Ltd. ..... Appellant V/s. M/s.Mahendra Builders & Ors. ..... Respondents Mr.Ashwin Shete i/b M/s.Khaitan & Jayakar, for the appellant. None for the Respondents. CORAM : R.M.S.KHANDEPARKAR & P.B.MAJMUDAR, JJ. DATED : JUNE 13, 2008. P.C. 1. Heard. 2. Factually there is a delay of only two days in filing the appeal against the order passed in Notice of Motion No.2066 of 2005. In normal circumstances, therefore, it would not have been difficult to condone the said delay. However, the fact remains that the appeal has been filed 2 against the order dated 14-12-2006 whereby the notice of motion has been dismissed, essentially on account of failure on the part of the appellant to join all the defendants as the parties to the notice of motion, in spite of the fact that the said notice of motion was taken out for restoration of the suit which was dismissed. 3. It is settled law that once the suit is dismissed, unless all the parties to the suit are made parties to the application seeking restoration of the suit, the question of allowing such application does not arise. Undisputedly, even on the date of hearing of the notice of motion, no time was sought to amend the notice of motion to join the remaining defendants as the parties. In those circumstances, the notice of motion having been dismissed, no purpose would be served in condoning the delay and hearing the appeal which has been filed. 4. Besides, the affidavit filed in support of this notice of motion, there is no explanation for either for the failure to join the said defendants as the parties, nor even sufficient cause has been disclosed for two days delay in filing the appeal, except saying that there is a mistake in calculation of limitation period. The affidavit however, does not disclose who has committed the said mistake whether the appellant himself or his Lawyer. For the reasons stated above, we do not find any reason for condonation of delay in the notice of motion. The notice of motion, therefore, stands 3 dismissed. ( P.B.MAJMUDAR, J.) ( R.M.S.KHANDEPARKAR, J.)