1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3644 OF 2008 IN SUIT NO.2115 OF 2005 Ms Mercy Quodroz & Ors. ....Plaintiffs. V/s Hussein Peer Khan (deceased) by Lrs 1(A) Smt. Zubeda Hussein Khan and Ors. ...... Defendants. ---- Mr. N.N. Vaishnava i/b M/s N.N. Vaishnawa & Co for the plaintiffs. None for the defendants. ----- CORAM: V.M. KANADE, J. DATE : 25th November, 2008 P.C.: 1. Heard the learned Counsel for the plaintiffs. Counsel for the plaintiffs submits that though the defendants have been served by writ of summons, they have not appeared at any time. Since the order was passed in the absence of defendants, in my view, it is not necessary to serve the defendants at this stage. 2. This is an application for recalling the order dated 21st August, 2008 passed by this Court. It is submitted that a praecipe was filed by the plaintiffs, seeking permission to withdraw the plaint and to submit the same before the competent 2 court. Reliance was placed by the plaintiffs on the judgment of the Full Bench of this Court in the case of Prabhudas Damodar Kotecha and Ors vs. Manharbala Jairam Damodar & Ors reported in 2007 (5) Bom. C.R. 1. In view of the praecipe filed by the plaintiffs, the plaint was returned to the plaintiffs with liberty to submit the said paint in the appropriate court. 3. Counsel appearing on behalf of the plaintiffs submits that the said praecipe had been filed inadvertently and on improper reading of the judgment of the Full Bench of this Court referred to hereinabove. It is submitted that, in the present case, plaintiffs had filed a suit for possession of the premises on the ground that the same had been given to the defendants on conducting basis. It is, therefore, submitted that ratio of the judgment of the Full Bench referred to hereinabove, would not apply to the facts of the present case since the Full Bench has held that in a suit which is filed for possession on the ground that defendant is a gratituous licensee, such a suit would not be maintainable in the High Court or City Civil Court but would be maintainable in the Small Causes Court. It is, therefore, submitted that on account of bonafide mistake on the part of the plaintiffs, the praecipe had been filed for withdrawal of the suit. 4. I have perused the affidavit in support of the Notice of Motion and a copy of the plaint. It is apparent that the suit as filed by the plaintiffs would not be maintainable in the Small 3 Causes Court and the ratio of the judgment of the Full Bench of this Court referred to hereinabove would not apply to the facts of the present case. There is, therefore, clear error of law which is apparent on the face of the record and case is, therefore, made out for recalling the order dated 21st August, 2008. 5. Accordingly, the order dated 21st August, 2008 is recalled and the suit is restored to the file. Liberty is granted to the plaintiffs to withdraw the plaint from the Small Causes Court and re-submit it in this Court. 6. Plaintiffs undertake to serve the writ of summons on the defendants again. On re-submitting the plaint, liberty is granted to the plaintiffs to take out separate notice of motion for interim orders which were granted earlier during the pendency of the suit. 7. Notice of Motion is disposed of in the aforesaid terms. (V.M. KANADE, J.) 4