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Judgment
P.S. Patankar, J.—Admit.
The learned Advocate for the Respondent Waives notice. By consent of the parties heard forthwith.
The Appellant herein filed Suit No. 7327 of 1986 and took out Notice of Motion bearing No. 6220/1986 inter alia claiming interim relief in terms of prayer (a) of N/M. which is as follows:
(a) that pending the hearing and final disposal of the suit, the defendants, their officers, subordinates, servants, and agents be restrained by an order and injunction of this Hon''ble Court from demolishing or pulling down the suit structure of the plaintiff admeasuring 37"-6" � 36"-6" constructed of brick masonary walls and A.C. sheet roof, situate at Koliwada Madh Village, Jethi Road, Malad (West), Bombay 400061 assessed by the defendants under No. PN-6905/20/2-61 BF Madh Koliwada or any part thereof or from taking any steps in pursuance of the or in purported enforcement of the said Notice enumerated in prayer (a) of the Plaint, i.e. No. WOP/N/351/41/NWN/86 dated 1.9.1986.
Ad-interim was granted. When the said Notice of Motion came up for hearing on 2.9.1992, the Advocate appearing for the Appellant was not having any instructions and hence prayed for adjournment. However, the said application was rejected by the learned Judge and the Notice of Motion came to be dismissed.
The Appellant took out another Notice of Motion for restoration of the Notice of Motion No. 6220/1986 and to set aside the order of dismissal of the same. The learned Judge by his order dated 13.10.1992 rejected the same holding that it was not necessary to grant any indulgence to the Appellant inasmuch as the said Notice of Motion was adjourned from time to time even then the learned Advocate for the Appellant was not having instructions in the matter. The learned Judge declined to rely upon the case of the Appellant that by an error the letter to appellant written by the learned Advocate for the Appellant was addressed as ''Bombay 400064'' instead of ''Bombay 400061'', hence the said Notice of Motion came to be dismissed.
Being aggrieved the Appellant has preferred this A.O.I heard both sides at length. Prima facie I feel that there was genuine error on the part of the learned Advocate for the Appellant in sending the same to the Appellant and calling from him instructions. Even assuming that there was some negligence on the part of the learned Advocate for the Appellant, I feel that the Appellant should not be punished for the same. The learned Advocate appearing for the Respondent agrees to this. However, prays that hearing of the Notice of Motion be expedited and the Respondent be granted costs.
Hence the following order:
The impugned order dated 13.10.1992 is set aside. The Notice of Motion bearing No. 6220 of 1986 is restored to file and the same shall be heard and disposed of on merits. The said Notice of Motion to be on Board on 5.12. 1992 and the Appellant to remain present on that day in the Court and obtain necessary orders from the Court. The Appellant to pay the costs of Rs. 750/- to the Respondents on or before 30.11.1992. The said amount to be paid with the legal Department of the Respondent.
The A.O. is disposed of accordingly.