1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.882 OF 2009 IN NOTICE OF MOTION NO. OF 2009 IN SUIT NO.2938 OF 2003 Frankey Ferreira ..Appellant V/s Brihanmumbai Municipal Corporation ..Respondents ---- Mr. Nitin G. Raut for the appellant. Mrs.K.K.Soraan for the respondent/BMC. ---- Coram : R.S.MOHITE,J Date : 1st September, 2009. PC 1 Heard both sides. In my view the appeal can be disposed off on merits. Hence, Admit. The matter is heard finally by consent. 2 The present appeal is filed by the appellant against an order dated 29.7.2009 passed by the City Civil Court dismissing a Notice of Motion filed by the plaintiff for restoration of the suit. It is seen that the suit was earlier decided on merits and the First Appeal filed by the original plaintiff in this Court was remanded with a direction that the plaintiff should remain present on 18.3.2009. It is the grievance of the appellant that the matter was not 2 shown on the board on 18.3.2009. The record indicates that thereafter it was adjourned on 14.5.2009 when the suit came to be dismissed. The plaintiff thereafter moved the Notice of Motion for setting aside the dismissal of the suit. This Notice of Motion was beyond the period of limitation by two months. By the impugned order the said Notice of Motion was dismissed. 3 In my view, since the suit was earlier decided on merits, it is desirable that the matter be dealt with and decided on merits. It is true that the plaintiff has to some extent been negligent and has filed his Notice of Motion after delay of 60 days. In my view, this can be dealt with by imposing cost on the plaintiff. In the circumstances, appeal is allowed. The impugned order passed by the City Civil Court on 29.7.2009 in Suit No.2938/2003 is set aside and the matter is remanded for a fresh decision on merits. The period for disposing the suit is extended by six months from today. The suit will appear on board before the concerned Judge of the City Civil Court on 14.9.2009. Both parties waive notice of the next date. The appellant will pay to the respondent an amount of Rs.2500/- by way of cost. The said cost will be paid to the respondents on or before 14.9.2009 and payment of cost will be condition precedent to the hearing of the suit. Payment of cost will be made directly to the B.M.C. (R.S.MOHITE,J) 3