1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 26 OF 2010 IN TESTAMENTARY SUIT NO. 67 OF 2002 IN TESTAMENTARY PETITION NO.140 OF 2002 Govind Bhikoobhai Patel ...Petitioner Vs. Francis Assumption Fernandes ...Caveator Mr. Amit H. Yadav, Advocate for Petitioner Mr. Arjun Kode with Mr. Chetan Chavan for Caveator/Defendant CORAM : SMT. ROSHAN DALVI, J. DATED : 2ND JULY, 2010 P.C. : 1. The Petition has been dismissed on 30 th January 2009. This Notice of Motion has been taken out in January 2010 after about a year for setting aside the order of dismissal. During the pendency of the Petition, as can be seen from the notings of the Court, the matter appeared on board on 12 th December 2008, 15 th January 2009, 22 nd January 2009, 29 th January 2009 and thereafter on 30 th January 2009. The first 2 dates show that the matter appeared for settlement. The Petitioner and his Advocate were absent. Thereafter the matter is not shown for settlement on 22 nd January 2009. 2 Thereafter it was specifically shown for hearing and final disposal, which would show that the settlement, if at all, had not come up and the matter had to be heard by the Court. Even on these two dates the Plaintiff did not appear and neither did his Advocate. Consequently, after recording of these facts the Suit has been dismissed. 2. It is for the Plaintiff to diligently prosecute his Suit. It is for the Plaintiff to instruct his Lawyer. It is for the Plaintiff to find out what were the terms of settlement. It is for the Plaintiff to state to his Advocate on what terms he would settle. In short, it is for the Plaintiff to prepare either to prove his case or to settle on his terms. The Plaintiff has done neither. The Suit has been dismissed. 3. It is the Plaintiff’s case that the matter was put for settlement and no offer of settlement was received. The Plaintiff is the Petitioner. He propounds the Will of the deceased. It is not understood what offer the Caveator could make. It would be for the Plaintiff in fact to make an offer for settlement. Hence the case that the Plaintiff waited for the offer to be received from the Caveator is esoteric. 4. Even if that was so, the Plaintiff must keep updates of hearing. The Plaintiff must mention to Court if no offer of settlement is received and must prosecute his action. Consequently, in view of the fact that the Plaintiff knew that the Suit was on board either for settlement or otherwise it was for the Plaintiff to prosecute the Petition. 3 5. The Plaintiff claims that he even came to know of the order passed in January in October 2009. What he did between January and October 2009 not explained. 6. On that footing he claims that the Notice of Motion is delayed by 2 months and 18 days. That delay is also not explained except to state that he was not able to attend the Court. 7. The Plaintiff has been unable to attend his matter continuously. That was precisely why the Suit was dismissed for want of prosecution. The Suit is correctly dismissed. No case is shown. 8. The Notice of Motion is dismissed. No order as to costs. (SMT. ROSHAN DALVI, J.)