D. K. DESHMUKH, J.

( 1 ) THIS Review Petition has been placed before us pursuant to the order passed by the Honble the Chief justice.

( 2 ) THE circumstances giving rise to the filing of this Review Petition are, Suit No. 2108 of 1999 was filed Bank of Baroda. It appears from the record that the suit was fixed on the board of the prothonotary and Sr. Master on 12-10-2006 for directions, because it was not clear whether the plaintiff had effected service of writ of summons on the Defendants. On 12-10-2006, none appeared before the Prothonotary and Sr. Master, therefore, the matter was adjourned to 4-12-2006. The order reads as under:-

"plaintiffs and their advocate absent. Adjourned to 4-12-2006. " on 4-12-2006, again the Plaintiffs and their advocate were absent and therefore, the matter was adjourned for dismisal. The order reads as under:-"plaintiffs and their advocate are absent. Adjourned for one week for dismissal. "

On 11-12-2006, the matter again appeared on the board of Prothonotary and Sr. Master for dismissal. That day again the Plaintiffs and their advocate were absent. Therefore, following order was made:-"plaintiffs and their Advocates are absent. They were absent on the earlier occasion also. It is not known whether the Defendants have been served or not. Suit dismissed for default. "

( 3 ) IT appears that the Notice of Motion No. 332 of 2007 was taken out by the Plaintiffs for setting aside the order passed by the Prothonotary and sr. Master dismissing the suit. That Notice of Motion was decided by a learned single Judge of this court (Honble Mr. Justice A. M. Khanwilkar ). The learned judge held that the question that is required to be answered for deciding that Notice of Motion was whether the Prothonotary and Sr. Master has the power to dismiss the suit for default. The learned Judge after referring to the provisions of Rule 986 of the high Court (O. S.) Rules has held that,

"on the plain language of this Rule, it is obvious that the plaint can be rejected for non removal of office objections and not for default of Advocates or parties to appear before the Prothonotary and Senior Master when the plaint is placed under caption direction. "

The learned single Judge found that the Prothonotary and Sr. Master does not have power to dismiss the suit for non-appearance of the parties or their advocates and therefore allowed the Notice of Motion setting aside the order passed by the Prothonotary and sr. Master and restored the suit.

( 4 ) IT appears that the Prothonotary and Sr. Master submitted a office note to the learned Judge pointing out that the observations of the learned Judge in the order dated 3rd April, 2007 that the Prothonotary and sr. Master does not have power to dismiss the suit for default is contrary to what is held by another learned single Judge of this Court (Honble Mr. Justice S. H. Kapadia as he then was) in his order dated 27th April, 1998 passed in Notice of Motion no. 1716 of 1996.

( 5 ) IT appears that the office note was decided to be treated as a Review Petition by the learned Judge (Honble Mr. Justice A. M. Khanwilkar ). That Review petition was heard by the learned Judge and disposed of by order dated 6th July, 2007. The learned Judge referred to the judgment of Justice Kapadia, referred to above in detail and observed that according to him the view taken by Justice Kapadia is not correct view of the law and thereafter the learned single Judge has observed thus:

8. For the aforesaid reasons, I have my own doubt about the correctness of the statement of law expounded in the order dated 27th april, 1998, which is pressed into service by the Prothonotary to urge that the Prothonotary has power to dismiss the suit for non-appearance of plaintiffs/advocates and secondly that the Prothonotary on sufficient cause being shown on a praecipe can set aside his Order, so passed, of dismissing the suit and restore the suit to the file to its original number.

9. The only appropriate course to observe judic

Click Here to Read the rest of this document