1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO.180 OF 2009 IN TESTAMENTARY SUIT NO.51 OF 1992 IN TESTAMENTARY PETITION NO. 247 OF 1991 Melvin Morris . ..Plaintiffs. Vs. Jerry Morris ...Defendant. Mr. Clive D’souza, for the Plaintiff. None for the Defendant. CORAM :- ANOOP V. MOHTA, J. DATED :- 9th February, 2010. P.C.- 1. The Plaintiff-petitioner has taken out this Motion for restoration of testamentary petition No.247 of l991 dismissed on 23rd June, 2008 as none appeared for the petitioner. 2. The case of the petitioner-plaintiff is that in October, 2007 the plaintiff engaged new Advocate, who has filed his Vakalatnama dated 5th December, 2007 after obtaining the ‘no objection’ from previous Advocate Mr M. B. Kadam. By his praecipie dated 11th March, 2008, his new advocate informed the Prothonotary & Senior Master that since his Vakalatnama dated 3lst October, 2007 filed on 2nd November, 2 2007 was lost and he filed another Vakalatnama on 5th December, 2007. However, the name of his advocate not appearing and requested to enquire into the matter. 3. On 26th August, 2008, by the praecipie of plaintiff’s advocate, request was made to place the above matter on board as the plaintiff and other witnesses are both Senior citizens. The only surviving attesting witness of the said Will is about 86 years old. However, the above suit did not appeared on the board and after that by order dated 23rd June, 2008, the matter was dismissed as none appeared for the plaintiff. 4. It appears from the record that name of the present advocate was not on the board and therefore, he could not appear though he has filed Vakalatnama on behalf of petitioner. The matter got dismissed for want of appearance. It is clear that as name of plaintiff’s advocate could not appear on board for more than three occasions though Vakalatnama has been filed on record. The same is still annexed there. 5. Considering above, I am of the view that for this the plaintiff-petitioner should not suffer. There is even no mistake of any kind or any sort of negligence on the part of advocate who has filed Vakalatnama and for same reason or other the name did not appear on the board and that resulted into the dismissal of petition for want of prosecution. In the result sufficient case is made out and in the interest 3 of justice, I am inclined to grant this Notice of Motion in terms of prayer clause (a) and (b). (ANOOP V. MOHTA, J.)