: 1 : 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.473 OF 2007 NOTICE OF MOTION NO.473 OF 2007 NOTICE OF MOTION NO.473 OF 2007 IN IN IN NOTICE OF MOTION NO.1975 OF 2005 NOTICE OF MOTION NO.1975 OF 2005 NOTICE OF MOTION NO.1975 OF 2005 IN IN IN SUMMONS FOR JUDGEMENT NO.855 OF 2003 SUMMONS FOR JUDGEMENT NO.855 OF 2003 SUMMONS FOR JUDGEMENT NO.855 OF 2003 IN IN IN SUIT NO.2309 OF 2001 SUIT NO.2309 OF 2001 SUIT NO.2309 OF 2001 Shri Padamshi Bhoja Gosrani .. Plaintiff. Versus M/s.Tulsidas Valji & Co. & Ors. .. Defendants. Mr.R.N.Bhagattjee for plaintiff. Mr.Jatin Vakani defendant No.3 in person and Constituted Attorney of defendant No.2. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 30th September, 2008. DATE : 30th September, 2008. DATE : 30th September, 2008. P.C. :- P.C. :- P.C. :- 1. The plaintiff has taken out this notice of motion : 2 : so as to set aside the order dated 24.11.2006 by which notice of motion No.1975 of 2005 in Summary Suit No.2309 of 2001 and has also prayed that ex-parte order dated 8.6.2005 dismissing the summons for judgement for default be set aside. 2. With the assistance of learned Advocate Mr.Bhagattjee for the plaintiff and defendant No.3 in person, who also claims that he appears for defendant Nos.2 and 3, I have perused the order dated 24.11.2006. At the time of passing of the order dated 24.11.2006, plaintiff was represented by Advocate and the court (Deshmukh, J) passed an order and dismissed the notice of motion No.1972 of 2005. 3. After having considered the matter in the proper perspective, I am of the view that if plaintiff was aggrieved by this order dated 24.11.2006, plaintiff ought to have challenged the said order before an appropriate forum. Taking out the present notice of motion is not the proper method of challenging the order dated 24.11.2006. Learned Advocate Mr.Bhagattjee submitted that order dated 24.11.2006 came to be passed as a result of erroneous statement made by defendant No.3 at the time of hearing of : 3 : the said motion and that is how plaintiff thought of taking out the present notice of motion so as to have order dated 24.11.2006 set aside. I am not inclined to accept the submission made by learned Advocate Mr.Bhagattjee because a close perusal of the order dated 24.11.2006 would go to show that the court has rendered some observations as to why the motion is required to be dismissed. In substance, that was an order on merits and it ought to have been challenged by the plaintiff before the appropriate forum and, therefore, the same is required to be dismissed. Hence the order :- O R D E R O R D E R O R D E R i) Notice of motion is dismissed with no order as to costs. 4. At this stage, learned Advocate Mr.Bhagattjee submitted that the plaintiff may be granted liberty to challenge the order dated 24.11.2006 in appeal. There is no need for this court to grant liberty. It is for the plaintiff to attend to the matter as he may be advised. 5. Remove it from Board. : 4 : sd/- (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)