* 1 * IN THE HIGH ?OURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3283 OF 2009 IN APPEAL NO. 1051 OF 2005 IN SUMMONS FOR JUDGMENT NO. 12 OF 2005 IN SUMMARY SUIT NO. 3534 OF 2004 1. M/s.Lalit Constructions 2. Narayan Kalulalji Trivedi 3. Sita Narayan Trivedi 4. Kalulalji Jasraji Trivedi 5. Ashok Munot ..........Appellants/Orig.Defds V/S. Pramod Chimanbhai Patel ...........Resp/Orig.Plff --------- Mr.Divesh Chamboowala, adv.for appellants. Mr.K.J.Hakani, adv.for respondent. CORAM : J.N.PATEL, & : SMT.R.P.SONDURBALDOTA, JJ. DATED : 1 st OCTOBER, 2009. P.C. : 1. Heard learned counsel for the parties. 2. This Notice of Motion is taken out by the appellants for restoration of the Appeal which came to be dismissed for want of prosecution on 18th August, 2009. The affidavit-in-support of the Notice of Motion explains the inability on the part of the appellants-original defendants to appear before the court when * 2 * the matter was listed for hearing. The learned counsel appearing for the respondent-original plaintiff, submits that the reasons given in the affidavit-in- support of the Notice of Motion are on the face of record, misleading and false and cannot be considered to be good and sufficient reason for restoration of the Appeal. In support of his contention, he has tendered a copy of the application being Criminal Case No.2926 of 2005, made by appellant no.2, which was then pending before the court of learned Metropolitan Magistrate, 43rd Court at Borivali, wherein the respondent-original plaintiff before us is the complainant and appellants no.1 and 2 before us are accused nos.1 and 2. It has been pointed out from the said application that Advocate Mr.Jayakar continued to be the advocate of the appellant. It was specifically mentioned in the application, which was essentially for seeking adjournment, that as Mr.Jayakar is busy before the Bench of Justice Daga and Justice Mrs.Mridula Bhatkar in an Appeal between the complainant herein and the accused, he was unable to attend to this court and proceed with the cross-examination of the complainant. The said application came to be allowed in the interest of justice, which according to the learned counsel for the respondent, demonstrates falsehood in the contention of the appellant which is filed by way of an Affidavit, that Mr.Jayakar had returned the brief. 3. Though, we are not accepting this as good and sufficient reason but in order to give a fair opportunity to the appellants, we are inclined to restore the * 3 * Appeal but on the ground that the learned counsel for the appellants would forthwith submit his arguments, so that the Appeal can be disposed off, which is pending in this court, since the year 2005. On the aforesaid contention, the Appeal is restored. [SMT.R.P.SONDURBALDOTA, J] [ J.N.PATEL, J]