1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1739 OF 2008 IN SUIT NO.3221 OF 1984 Atul D. Sohni & Anr. .. Plaintiffs Versus Babubhai M. Choksey & Ors. .. Defendants None for plaintiffs Mr.Clive D’Souza for applicant Mr.Dasgupta i/b. J.Narula & Associates for defendant No.2. CORAM : S.C.DHARMADHIKARI, J. DATE : 29th September 2008 P.C. . Applicant had moved Notice of Motion No.3032 of 1999 which was placed before this Court way back in 2001 and was dismissed for default. 2. Present notice of motion is taken out to set aside the order of dismissal and restoration 2 of the Motion No.3032 of 1999. Mr.Dasgupta appearing for defendant No.2 opposes the motion. 3. Paras 5 and 6 of the affidavit in support of present notice of motion lists the ailments with which the applicant suffers and his hospitalisation so also the treatment he is undergoing. 4. This entire affidavit has been perused be me. It is true that the applicant has listed all the ailments and the treatment that he has undergone but at no stage does it indicate that he was unaware of the order dismissing the motion for default or that he was informed by his Advocate about the same. 5. The only thing applicant says that he is senior citizen aged about 79 years and not keeping well. Advocate appearing for the applicant states that the applicant will remain 3 present on the date and time when this motion is fixed for argument but it may kindly be restored. The applicant is also willing to abide by all terms and conditions including imposition of costs. 6. In such circumstances and the facts peculiar to this case the notice of motion is allowed in terms of prayer clause (a) of the Notice of Motion No.1739 of 2008. Resultantly, Notice of Motion No.3032 of 1999 is restored to file and be placed on 6th October 2008 provided the applicant pays cost of Rs.5000/- prior to next date. Applicant to pay costs to the Maharashtra Legal Services. Costs condition precedent. 7. Needless to state that in default of payment of cost the order dismissing the notice of motion will not be disturbed and the present notice of motion shall also stand dismissed. 4 (S.C.Dharmadhikari, J)