1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION A.O.NO. 716/2008 Devji Gala (since deceased by heirs) Maniben Gala and others. APPELLANTS Vs. Gopal Shetty (since deceased by heirs) Smt.Rajvi Gopal Shetty & Ors. RESPONDENTS Mr.Y.S.Jahagirdar ,Sr.Counsel i/b Mr.B.K.Raje for the appellants Mr.H.S.Shreepad Murthy for Res.1 to 3 CORAM: S.J.VAZIFDAR,J. DATE : 3rd December,2008 P.C. 1] Admit. Finally heard. 2] The appeal is filed against an order rejecting the appellant's notice of motion for setting aside the order of dismissal of the suit for default. 3] The plaintiff's first advocate had expired. The plaintiff appointed another advocate who started practicing essentially in the Family Court .The plaintiff ,therefore, engaged a third advocate. In these circumstances it can hardly be said that the plaintiff was in the habit of engaging different advocates unnecessarily. 4] It is true that the present advocate had remained absent. The suit was filed in 1974. Various proceedings have been taken out therein. I am satisfied that the plaintiff was prosecuting the suit. In the 2 facts and circumstances of the case it would not be fair or just to dismiss the suit on account of the default of the plaintiff's advocate . 5] It is also pertinent to note that the respondent's suit filed in the Small Causes Court was dismissed as having abated. The application for setting aside abatement was rejected by the trial Court. The abatement was finally set aside by the Appellate Court a few days ago. 6] In the circumstances the impugned order is set aside . 7] Notice of motion is made absolute in terms of prayer clauses 'a' and 'b'. A.O.is disposed of accordingly.