1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion no. 1130 of 2008 in suit no. 744 OF 2000 Urmila Pravinchandra Shah : Plaintiff v/s M/s Kumud Grinding Mills : Defendants with Notice of motion no. 1132 of 2008 in suit no. 745 of 1989 Hiralal Kheraj Shah : Plaintiff v/s M/s. Usha Masala Products : Defendants with Notice of motion no. 1133 of 2008 in suit no. 746 of 1989 Hemlata Morarji Shah : Plaintiffs v/s M/s. Usha Masala Products : Defendants R.C. Shah i/b J.B. Patel advocate for plaintiffs H.J. Thakkar Sr. adv. I/b K.D.Shah advocate for defendant/in support of notice of motion Coram : Shri A.P. Deshpande, J Date : 13.6.2008 P.C. Common order in these three notice of motions. These notice of motions have taken out by the defendants in 3 connected identical suits filed by the plaintiffs. The prayer made in the notice of motion is to recall an order dt. 9.1.2008 “closing the case of the defendant on account of the absence of the defendant and his counsel.” This court by an order dt. 9.1.2008 after noticing the fact that the plaintiff has filed affidavit of examination in chief of his witness and after noticing the fact that the defendant and his counsel were absent has closed the evidence thereby denying the right to cross examine the plaintiff's witness to the defendant. In the notice of motion it is averred by the defendant that the absence of the defendant so also his counsel on 2 9.1.2008 was neither deliberate nor intentional but was on account of the communication gap in regard to the alternate arrangement made by the defendant as his earlier advocate Shri Suresh Chandan had gone abroad and advocate Shri K.D. Shah was appointed in his place to conduct the matter. The notice served by the plaintiff on the defendant pursuant to order passed by this court so also notice to admit the documents served under order 12 rule 2(a) was left at the address of the earlier advocate and thus the newly engaged advocate was appointed in the above referred contingency to conduct the case had no knowledge about the same which resulted in the passing of the order dt. 9.1.2008. After the matter came to be closed for arguments the suits have not proceeded further in view of the notice of motion being pending consideration. Having regard to the reasons spelt out in the notice of motion I am convinced that the defendant is entitled to an opportunity to contest the suit as otherwise the same is bound to result in miscarriage of justice. In my view cause of justice would advance if the order dt. 9.1.2008 is recalled and the defendant is given an opportunity to defend the suit. The plaintiff no doubt has been put to inconvenience however the plaintiff can be adequately compensated by imposing cost on the defendant, hence in the interest of justice the notice of motion is made absolute in terms of prayer clause (a). Learned counsel does not press prayer clause (b)for the present. However he seeks liberty to raise the said objection at an appropriate stage during the trial. Liberty as prayed for is granted. The notice of motion as stated above is made absolute in terms of prayer clause (a) however subject to payment of cost of Rs. 5000/- in each of the suits total Rs. 15,000/- to be paid by the defendant to the plaintiff within 2 weeks from today. It is made clear that the defendant shall now be entitled to cross examine the plaintiff's witness and the plaintiff as well shall be entitled to lead further evidence if and in case deem fit. In the result notice of motions stands disposed of. Stand 3 over for three weeks. (A.P. Deshpande, J)