1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8980 OF 2010 Laxmibai Sitaram Shinde & Others ...Petitioners Versus Mr.B.R.Bhattad & Ors. ...Respondents Mr.Manish Pabale for the Petitioner Mr.H.Devrajan, N.V.Vimadalal i/b. M/s. Vimadalal & Co. for the Respondent Nos.1 to 3 CORAM:- R.Y.GANOO, J. DATED:- 4th OCTOBER, 2011. P.C. 1. Rule. Rule is made returnable forthwith. 2. Learned Advocate appearing on behalf of the respondent waives service. The petitioners have challenged the order dated 9.9.2010 passed in Notice of Motion No.1718 of 2010 in Short Cause Suit No. 583 of 2008 which was filed in the City Civil Court at Bombay. 2 3. The petitioner was directed to pay cost of Rs.2000/- by order dated 22.6.2010. Unfortunately, the said order did not mention the time within which the costs were to be paid. When the suit was again called out on 9.7.2010, the Court noted that the costs are not deposited. Hence the court proceeded to dismiss the suit for want of prosecution and payment of cost. This order became subject matter of Notice of Motion No.1718 of 2010. The learned Judge has discussed in the impugned order dated 9.9.2010 as to why he was not impressed to restore the suit. It appears that the learned Judge took a view that because the costs are not paid, the only order which can be passed is dismissal of the suit. In my view, it was necessary for the learned Judge to give one last chance to pay costs and then, if the petitioners were to commit any default, heavy penalty of dismissal of the suit could have been imposed upon the petitioners. In my view, the impugned order is required to be set aside and the petitioner should be given a chance to pay costs and have the suit restored. 4. The learned Judge of the City Civil Court had imposed the cost of Rs.2000/- pursuant to the order dated 22.6.2010. The petitioner will have to pay this cost of Rs.2000/-. 3 5. The Notice of Motion was dismissed and at that time cost of Rs. 2000/- was imposed. The petitioners are approaching this Court and the present respondents were required to appear before this Court. In such a situation, for disposal of this petition, I am inclined to fix the cost of Rs.2000/- so far as the cost of this petition. This will mean that the petitioner will now have to pay Rs.4000/- by way of costs. In view of the above, petition is disposed of by passing following order. ORDER i) Order dated 9.9.2010 passed by the learned 2nd Addl. Principal Judge, City Civil Court, Bombay in Notice of Motion No.1718 of 2010 in Short Cause Suuit No.583 of 2010 is set aside. ii) The aforesaid motion is made absolute, that is to say the Order dated 9.7.2010 dismissing the suit is set aside. The suit is restored to the file of the court. Iii) The aforesaid cost of Rs.4000/- mentioned in this order shall be paid to the High Court Legal Service Committee, on or before 14.10.2011. If the costs are deposited as aforesaid, the suit shall 4 stand restored. If the costs are not deposited, the order dated 9.7.2010 dismissing the suit shall prevail against the petitioners. iv) Learned Advocate for the respondent informs the court that the petitioners had, while the suit was pending, secured the order of injunction against the respondents. It is made clear that on account of dismissal of the suit on 9.7.2010 the said injunction will not operate against the respondents. Unfortunately, there is no mention about the same in the order. If at all the petitioners now wants to have the injunction against respondents, petitioners will have to make out a fresh case and the court shall consider the said case on merits. (R.Y.GANOO, J.)