1 NMS2731.09.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2731 OF 2009 IN SUMMARY SUIT NO. 2995 OF 1985 MHADA & Ors. ... Plaintiffs. V/s. M/s. Lilly Construction Co. & Ors. ... Defendants. Mr. P.G. Lad, AGP for the Plaintiffs. Mr. S.S. Purohit with Manish Doshi i/b. Vimadalal & Co. for Defendants 1,2,5 and 6. CORAM : R.Y. GANOO, J. DATED : 25th NOVEMBER 2010. P.C. :- The Suit came to be dismissed by order dated 16th July 2009 under Order IX Rule 8 of C.P.C. This Motion is taken out for setting aside the said order and for restoration of the Suit. 2. I have heard learned Counsels on both sides. Learned Counsel Mr. Lad appearing on behalf of the Plaintiffs tried to submit as to what transpired on 16th July 2009 at about the time when the Suit came to be dismissed. He prayed for restoration of the stay to enable the Plaintiffs to prosecute the Suit as the Suit is for recovery of certain monies from the Defendants. 2 NMS2731.09.sxw 3. Mr. Purohit, learned Counsel appearing on behalf of the Defendants took me through the various orders by which the Suit was being attended to. He pointed out that on 5th August 2009 the Suit came to be dismissed and that the same was restored and thereafter, no positive steps were taken by the Plaintiffs in the nature of filing of evidence affidavit though order dated 29th June 2009 was passed. He submitted that on the day when the Suit came to be dismissed, evidence affidavit was not on record. He submitted that the conduct on the part of the Plaintiffs indicates that they are not interested in prosecuting the Suit. He prayed for dismissal of the Motion. 4. After having heard learned Counsels on both sides and the various orders passed in the Suit, I am inclined to observe that some progress did take place from August 2008 till July 2009 in a Suit of 1985. Learned Counsel for the Plaintiffs, upon instructions, has indicated to the Court that on 16th July 2009, evidence affidavit was ready but Suit was dismissed. 5. I have perused the order dated 16th July 2009. The matter was called out and at first call the matter was kept back at the request of Advocate for the Plaintiffs. As on the second call, Advocate remain absent, it came to be dismissed. In my view, the peculiar way in which the events took place on 16th July 2009 resulting in dismissal of the Suit are required to be considered in the light of affidavit in support of Motion. 3 NMS2731.09.sxw An opportunity will have to be given to the Plaintiffs to put up their case. Hence, I am inclined to allow the Motion. As the Suit is of 1995 it will have to be heard expeditiously. 6. Hence, following order is passed to dispose of the Notice of Motion :- (i) The Motion is made absolute in terms of prayer clause (a). (ii) The Suit is restored to the file of this Court. (iii) There shall be no order as to costs. 7. Issues are already framed. Learned Counsel Mr. Lad tenders evidence affidavit of Mr. Mukund Srivastava. He states that original documents are in the custody of the Officer. Adjourned to 7th December 2010 for recording of evidence. The Plaintiffs to supply to the Defendants copy of evidence affidavit as well as compilation of documents. Tender compilation of document in the Court directly on the day. The Court shall proceed to mark the documents and further steps will be taken up. 8. At this stage, Mr. Purohit, learned Counsel for the Defendants states that issue as regard jurisdiction be tried first. This request shall be considered on the adjourned date. (R.Y. GANOO, J.)