1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINA CIVIL JURISDICTION NOTICE OF MOTION NO. 3975 OF 2007 IN SUIT NO. 2778 OF 1984 United India Insurance Co. Ltd. & Anr. ......Plaintiffs V. J.B. Roadlines & Four Ors. ......Defendants Ms Varsha Jain with Preeti Shah for the plaintiffs Mr. P.G. Pravin for for the defendant Nos. 1 and 2 None for the defendant No.3 CORAM : A.A. SAYED, J. DATE : 1ST JULY, 2009. P.C. 1 This Notice of Motion is taken by defendant Nos. 1 and 2 to set aside the order dated 13th June, 2007 passed in Notice of Motion No. 3259 of 2005 whereby the said Notice of Motion was dismissed for non prosecution. 2. It appears that though Mr. S.R. Singh, Advocate for the defendants was present when the motion was called out, the Notice of Motion was dismissed for non prosecution. In the affidavit in support of Motion, the defendants have stated that they pursued the matter with the said Advocate, however, there was no proper response from the said Advocate. Thereafter the defendants have changed their Advocate and the present Notice of Motion is taken out. Affidavit-in-reply has been filed by the plaintiffs opposing the Motion. The learned Counsel for the plaintiffs submitted that exparte decree has already been passed in the suit and the Notice Motion 2 No. 3259 of 2005 for setting exparte decree has also been dismissed and the present Notice of Motion has been taken out to restore the previous Notice of Motion. She submitted that the defendants have been negligent in the matter. She further submitted that no case for granting reliefs has been made out. 3 Having considered the rival contentions of the parties, in my view the defendants cannot be made to suffer on account of any lapse on part of their Advocate. I am therefore inclined to allow the Motion. The plaintiffs can be compensated by awarding appropriate costs. It is pertinent to note that the Notice of Motion was dismissed for non prosecution, though Advocate for the defendant was present when the motion was called out. It appears that either he was not in a position to argue or not ready with the matter. So far as the contention of the learned Counsel for the plaintiff that Appeal ought to have been filed instead of taking out the earlier Notice of Motion which was dismissed, in my view this contention cannot be gone into at this stage and it would be open for the plaintiffs to take up this plea in the earlier Notice of Motion once that Motion is restored. 5 In the circumstances the Notice of Motion is allowed in terms of prayer clauses (a) and (b) subject to costs of Rs. 5000/- to be paid by the defendants to the plaintiffs within 4 weeks. 6 Notice of Motion to stand disposed of accordingly. A.A. SAYED J.