IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2621 of 2007. NOTICE OF MOTION NO.2621 of 2007. NOTICE OF MOTION NO.2621 of 2007. IN IN IN SUIT NO.1457 of 1981. SUIT NO.1457 of 1981. SUIT NO.1457 of 1981. The National Small Industries Corporation Ltd. ..Plaintiffs versus Camber Haider Ali ..Defendant Ms.Usha Tiwari for the Plaintiffs None for the Defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 16th Oct., 2008. DATED : 16th Oct., 2008. DATED : 16th Oct., 2008. P.C. 1. The plaintiffs by this motion want that the Order dated 3/5/2007 passed by this Court thereby dismissing the suit for default should be set aside and the suit should be restored to the file of this Court. The plaintiffs want that the delay of 40 days in taking out the motion be condoned. 2. I have heard learned Advocate Ms.Tiwari for the plaintiffs and perused the earlier roznamas. The suit came to be dismissed for the first time on 19.4.2001. The plaintiffs took out Notice of Motion No.2351 of 2003 in Suit 1451 of 1981. The said motion was decided by the Court on 18.1.2006 -2- and the Order dated 19.4.2001 was set aside by directing the plaintiffs to pay cost of Rs.10,000/- 3. It is admitted by the plaintiffs in para 4 of the affidavit in support of this motion that the plaintiffs did not pay the cost and filed appeal No.154 of 2006 challenging the Order dated 18.1.2006 and according to the learned advocate for the plaintiffs Ms.Tiwari, as of today the said appeal is pending. 4. It is seen that in the record one finds roznama dated 29.4.2007 wherein it is ordered that the suit is dismissed for want of prosecution. This presupposes that the suit was shown on board and the same came to be dismissed. Thereafter one finds Order dated 3.5.2007 by which the suit was dismissed on 3.5.2007. The plaintiffs have taken out this motion to have this Order dated 3.5.2007 set aside. 5. After having gone through the entire record it is difficult to understand as to how the matter was shown on board when the plaintiffs had not paid the cost of Rs.10,000/- as in my view when the -3- plaintiffs had not complied with the Order of payment of cost they were not entitled to have the same restored and have had it on the board. It is in these circumstances showing the matter on board after Orders dated 18.1.2006. In the absence of payment of cost by the plaintiffs was patently wrong. Even otherwise one finds order dated 29.4.2007 dismissing the suit, thereafter one finds another Order dated 3.5.2007 dismissing the suit. It is just difficult to understand how the office kept the matters on board and the suit came to be dismissed again and again. The aforesaid discussion would go to show that the plaintiffs could not take the benefit of the Order dated 18.1.2006 as they did not pay the cost. If this be so, the question of restoration of the suit cannot arise and therefore the Order of 3.5.2007 could not have been passed. Hence there is no question of setting aside the Order dated 3.5.2007 and restore the suit to the file of the Court. In these circumstances, I have no alternative but to dismiss the Notice of Motion. 6. Learned advocate for the plaintiffs submitted that the appeal filed by the plaintiffs -4- being Appeal No.154 of 2006 is pending and the plaintiffs would ofcourse be prosecuting the said appeal. 7. For the reasons mentioned aforesaid, I pass the following Order: ORDER Notice of Motion is dismissed. There shall be no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)