1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3797 OF 2008 IN SUIT NO. 900 OF 2002 Smt. Hemlata H. Naik ...Plaintiff. Vs. Smt. Kusum D. Chogle & Ors. .. Defendants. ---- Mrs. N.V. Sanglikar, for the Plaintiff. Mrs. S.A. Dhamale, for Defendant No.2. Mr. H.S.S. Murthy with Piyush Shah for Defendant No.8. ---- CORAM: R.Y. GANOO J. DATED : 23RD MARCH, 2010 P.C. 1. This Notice of Motion is taken for setting aside the order dated 15.9.2008 passed by the Addl.Prothonotary & Senior Master/Registrar, (Finance & Budget) in Misc. Application taken out by in the present suit. Few facts in the Notice of Motion are necessary to be disclosed. 2. On 3.12.2007, the Addl.Prothonotary & Senior Master passed an order and dismissed the suit against Defendant Nos.1,2,3, and 5 to 7. When this order was passed Defendant No.8 who has taken out the Notice of Motion was already joined as Defendant No.8. The Plaintiff was aggrieved by the order dated 3.12.2007 and therefore she filed a 2 Misc.Application in the present suit apparently for seeking a relief so as to see that order dated 3.12.2007 as mentioned above is set aside. The Registrar,(Finance & Budget) heard the said application and the order dated 3.12.2007 was set aside and the suit was restored to file. 3. Defendant No.8 has filed his Notice of Motion challenging the order passed by the Registrar,(Finance & Budget) dated 15.9.2008 on the ground that there is no procedure set out for passing an order dated 15.9.2008 and the said order is passed is without appropriate powers. In reply, Ms. Sanglikar, learned Advocate appearing for the Plaintiff submitted that the said order has been properly passed and same should not be set aside. 4. Having heard the learned Advocates on the both sides, I am inclined to observe that the order dated 3.12.2007 by which the suit was dismissed came to be passed against Defendant Nos.1,2,3, and 5 to 7 and not against Defendant No.8 who has taken out the present Notice of Motion. Mr. Murthy, learned Advocate appearing for Defendant No.8 wants to read the the said order as a whole interpreting and hold that the suit was dismissed against Defendant No.8. I am not inclined to do this exercise because the Addl.Prothonotary & Senior Master has by order dated 3.12.2007 specifically mentioned the Defendants against whom the suit is dismissed. Hence, I must look to the order as it appears. According to me it is clear that the suit was not dismissed against Defendant No.8. If this be so 3 as of today, I am inclined to observe that the order dated 3.12.2007 as well as order dated 15.9.2008 does not favour Defendant No.8 or it does not affect Defendant No.8. If this be so, according to me as of today the suit survives against Defendant No.8. If this be so, in my view it is not open for Defendant No.8 to have this Notice of Motion decided in his favour because order dated 15.9.2008 does not concern him. 5. If in the opinion of Defendant No.8 Addl.Prothonotary & Senior Master ought to have included the number of Defendant No.8 while passing order dated 3.12.2007 or the alternative if according to Defendant No.8 purport of order dated 3.12.2007 was to dismiss the suit against Defendant No.8, it is open for Defendant No.8 to move the Addl.Prothonotary & Senior Master by an application in the nature of speaking to the minutes or any other application in the appropriate format so as to seek clarification as to whether suit was dismissed against Defendant No.8. 6. I have not gone into the question whether the Registrar(Finance & Budget) had jurisdiction to set aside the order dated 3.12.2007 passed by the Addl.Prothonotary & Senior Master. It must be mentioned that the learned Advocate appearing for Defendant No.8 did not contest the power of Addl.Prothonotary & Senior Master to dismiss the suit for not effecting the service of writ of summons upon a particular Defendant. 4 7. In view of the above, the Notice of Motion is dismissed by following order: i) The Notice of Motion is dismissed with no order as to costs. It is clarified that if according to Defendant No.8 the order dated 3.12.2007 should also have been passed in so far as Defendant no.8 is concerned, Defendant No.8 is free to move the Addl.Prothonotary & Senior Master for appropriate reliefs including relief in the nature of speaking to the minutes of order dated 3.12.2007. ii) If such an application is made by Defendant No.8, the Addl.Prothonotary & Senior Master shall decide the same on its own merits. The Addl.Prothonotary & Senior Master shall pass order without getting influenced by the observations made hereinabove. It is clarified that I have not expressed any view on the merits on stand taken by Defendant No.8. (R.Y. GANOO J.)