1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.608 OF 2006 IN NOTICE OF MOTION NO.4831 OF 2005 IN B.C.C.C. S.C.SUIT NO.738 OF 1997 Abdul Razak Khan an adult of Mumbai, Indian inhabitant, residing at M.N.D’Souza Compound, 33, Khairani Road, Sakinaka, Andheri (East), Mumbai 400 072 ...Appellant. (Org. Plff.) v/s. Shriram Mithai Barai (NAG) adult of Mumbai, Indian Inhabitant residing at M.N.D’Souza Compound, Khairani Road, Sakinaka, Andheri (East), Mumbai 400 072 ...Respondent. (Org. Deft.) Ms Savina Bangera i/by Shri Anil R. Mishra ,advs. For the Appellant. CORAM : J.H. BHATIA, J. DATED : AUGUST 9, 2011. ORAL JUDGMENT: 1 This appeal was preferred by the original plaintiff against rejection of Notice of Motion No.4831 of 2005 taken out by him for restoration of S.C.Suit No.738 of 1997, which was dismissed in default on 16th November, 2005. 2 Plaintiff in the suit had sought injunction restraining the 2 defendant from causing any obstruction in his right of ingress and egress to his shop from the rear side and also he sought perpetual injunction restraining the defendant from making construction of wall which would obstruct his right of air and light from a window. On 16.11.2005 when the matter was called for evidence and final hearing, none appeared for the plaintiff and, therefore, it came to be dismissed in default. In the notice of motion, plaintiff/appellant contended that he had gone to UP to attend the marriage of a daughter and because of certain difficulties, advocate also could not appear on the given date. The learned Judge City Civil Court rejected notice of motion on the ground that on the previous dates also, either the plaintiff had not appeared or his advocate had not appeared or both of them had not appeared and in spite of the directions given for filing affidavit in evidence on 17.3.2005, plaintiff and his advocate were absent and they did not lead any evidence. On 13.6.2005, plaintiff and his advocate were present but did not file affidavit in evidence and only sought adjournment. On 17.10.05 also no such affidavit was filed and the Court had clearly directed that if the affidavit of evidence would not be filed on the next date, suit would be liable to be dismissed on the next date, i.e., 16.11.2005. On 16.11.2005 again plaintiff and his advocate did not appear nor any evidence was led and, 3 therefore, the suit came to be dismissed. The learned trial Court observed that in view of the above record, it was clearly revealed that the plaintiff was not diligent in proceeding with the suit. Not only this notice of motion for restoration of the suit was also not filed within period of limitation being 30 days. Notice of motion does not show that any application for condonation of delay in filing the notice of motion was filed. This was another reason for dismissal of the notice of motion. 3 Taking into consideration the facts and circumstances noted above, it is clear that not only on 16.11.2005, plaintiff and his advocate were absent but on number of dates in spite of specific directions given by the Court. Plaintiff had failed to file affidavit of evidence in spite of specific directions given on 17.10.2005 that if the affidavit in evidence would not be filed on the next date, suit would stand dismissed. In spite of this direction on the next date, i.e., 16.11.2005. neither the plaintiff nor his advocate appeared nor the affidavit in evidence was filed. Application for restoration could be filed within 30 days. That application was also not filed within time nor any application was moved for condonation of delay by giving satisfactory reasons. In the affidavit in support of the notice of motion, plaintiff had not given any details as to when he had left the Bombay and when he had come back nor he had 4 stated whose marriage, he was attending. The learned Judge rightly commented that as per his affidavit some daughter was to be married but whose daughter was to be married was not disclosed. In view of these circumstances, I find no fault with the rejection of notice of motion and, therefore, there is no substance in the present appeal. 4 In the result, appeal stands dismissed. (J.H. BHATIA,J.)