1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 94 OF 2009 IN TESTAMENTARY SUIT NO. 20 OF 1985 IN TESTAMENTARY PETITION NO. 699 OF 1982 Sukhdev Naraindas Joshi ...Plaintiff. Vs. Shivkumar Naraindas Joshi ...Defendant. Ms. Prachi Khandge i/by M/s. M.P. Vashi & Associates for the Plaintiff. Mr. R.T. Yadav i/by J.G. Damani for the Defendant. CORAM :- ANOOP V. MOHTA, J. DATED :- 15TH SEPTEMBER, 2009. P.C.- 1 The Plaintiff-Petitioner has taken out this Notice of Motion for restoration of the Testamentary suit which was dismissed on 28th January 2008. The Petitioner is aged about 84 years old. The matter is pending since 1982. 2 On 28th January, 2008, the matter was listed for recording the evidence. None appeared, though called twice. Therefore, it was 2 dismissed for non-prosecution. Then the Advocate who was engaged in the matter, as averred, never intimated to the Petitioner about the dismissal. It appears that the Advocate as well as the Plaintiff both were absent. In Court matters, it is not expected that the litigation/party be present in the matter on every date. In such matters, normally the Advocate who attends the matter and considering the situation, may ask or appear and requested for adjournment. The Court may or may not be granted the adjournment, but that does not mean that no one should appeared, when the matter was called out. As the advocate, as well as, the parties were absent on the date and as the suit was dismissed for non prosecution, the possibility of not noting the dismissal, just cannot be ruled out. If not noted the date, then in such old matters, the possibility of clients/ parties knowledge of the date is also not possible. The Petitioner/parties thereafter, inquired and found that the matter was already dismissed for want of prosecution and thereafter engaged another advocate and moved the application, this is, in my view, in the present facts and circumstances and as considering the averments so made is a sufficient cause. 3 The parties should not be caused to suffer because of default on the part of the advocate. The age of the Petitioner is also relevant fact. There is nothing on record to show that the previous advocate, at any point of time, intimated to the Petitioner about the default. 4 Apart from this, in the interest of justice, as it is a testamentary suit, I 3 am inclined to allow this Notice of Motion. The suit is accordingly restored to file. However, this is subject to costs of Rs.5,000/- to be paid to the Defendant on or before 29th September, 2009. This is a condition precedent. 5 The Notice of Motion is accordingly, allowed in terms of prayer clauses (a) and (b). No order as to costs. (ANOOP V. MOHTA, J.)