1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.8159 of 2009 Sayed Jalil Hussaini ... Petitioner versus Municipal Corporation of Gr.Bombay & ors. ... Respondents ... Mr. A.S.Karwande for the petitioner. Mr.V.R.Tripathi i/b V.R.Tripathi & Associates for the respondent nos.1 to 9 CORAM : D.G. KARNIK, J. DATED : 7th July 2010 P.C. 1. Heard learned counsel for the petitioner and respondent nos.1 to 9. Respondent no.10 is absent though served. 2. Rule. By consent, Rule is made returnable forthwith. Counsel for the respondent nos.1 to 9 waives service. Service of Rule on the respondent no.10 is dispensed with since he has chosen to remain absent inspite of notice. 3. The petitioner challenges order dated 15 June 2009 passed by the learned 5th Adhoc District Judge rejecting the petitioner’s motion for 2 setting aside the order dismissing his suit in default. The suit was posted for hearing on 5th February 2009. On that day, petitioner and his advocate were absent and therefore petitioner’s suit was dismissed in default. In paragraph no.6 of the decision, learned Judge has noted that petitioner was absent even in the past and the suit was once dismissed in default but was restored on petitioner’s application. The previous dismissal of the suit and its restoration appears to have weighed in the mind of the learned Judge heavily while dismissing the notice of motion taken out for setting aside dismissal of suit on the second occasion. If the suit was restored on the first occasion, it must have been restored for good reasons i.e. existence of a sufficient cause for absence on the first occasion. Therefore, that could not have been a ground for rejection of the present notice of motion. Similarly, the learned Judge has also noted that even after restoration, petitioner had remained absent on a few dates. It may be noted that on all those dates matter was adjourned and the matter would not have been adjourned unless there was a good cause for adjournment. Hence, even past adjournments sought by the petitioner-plaintiff could not be a ground for refusal to set aside the order of dismissal. All that the trial court was required to see whether there was good and sufficient cause for his absence on the day the suit was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure. Unfortunately, the learned Judge has not recorded any finding that there was no sufficient cause for the petitioner to remain absent on 5 February 2009. On hearing the learned counsel for the parties the contention of the petitioner that since the suit was transferred to a newly established Court at Dindoshi his previous lawyer who was practicing in the old Court was unwilling to attend the Dindoshi Court and petitioner wanted to engage another 3 advocate, in my view, makes out a sufficient cause. However, while passing an order for restoration defendants must be compensated because they were required to attend the court while the plaintiff was remaining absent. Taking into consideration the fact that there are 9 defendants who have contested the application, it would be appropriate to award total costs of Rs.27,000/-. 4. For these reasons, writ petition is allowed. Impugned order is set aside subject to the petitioner depositing in this court a total sum of Rs. 27,000/- within four weeks. Petitioner shall be given a credit for Rs. 10,000/- already deposited. The balance amount of Rs.17,000/- shall be deposited within four weeks. If the amount is so deposited within 4 weeks the office shall issue the necessary writ. If the costs are not deposited within four weeks hereof, the writ petition shall stand dismissed and Rule shall stand discharged without further reference to the court. 5. Defendants are permitted to withdraw the sum deposited in the court towards costs. Each of the respondents 1 to 9 is permitted to withdraw Rs.3,000/- out of the amount deposited in the court towards costs. (D.G. KARNIK,J.)