P.C. :

1. This Notice of Motion is taken out by the Plaintiff for setting aside an order dated 18 February 2011 passed by a learned Single Judge of this Court, dismissing the Summary Suit for want of prosecution.

2. The suit claims a decree for a sum of Rs. 20,00,000/-with interest from date of filing of the suit till payment and or realisation. The suit is filed on the basis of a Memorandum of Understanding executed between the Plaintiff and the Defendants.

3. By an order dated 10 December 2009, unconditional leave to defend was granted to the Defendants. The Defendants, thereafter, filed their Written Statement and the suit was posted for evidence. On 12 April 2010, the Plaintiff sought time to file his affidavit in lieu of examination-in-chief along with the affidavit of documents and therefore, the suit was adjourned for a period of one week. On 19 April 2010 when the matter was taken up for hearing once again, the Plaintiff failed to file his affidavit in lieu of evidence as well as the affidavit of documents. On an adjourned date, i.e. on 26 April 2010, once again, time was sought by the Plaintiff. Thereafter the matter was called out on 11 January 2011, when the Plaintiff was still not ready with his affidavit and original documents and the matter was adjourned to 18 February 2014. The matter was called out on 18 February 2011, when once again time was sought on the ground that the Plaintiff was out of Mumbai. This Court came to the conclusion that despite repeated opportunities being given, the Plaintiff had failed and neglected to file his affidavit in lieu of examination-in-chief and documents and that the Plaintiff was, therefore, not interested in prosecuting the suit. This Court, accordingly, dismissed the suit for want of prosecution on 18 February 2011.

4. The present Notice of Motion is taken out by the Plaintiff for setting aside the order of 18 February 2011, on the ground inter-alia that on account of the Plaintiff's ill-health, he could not initially attend the hearing or instruct his Advocates to prepare the necessary affidavit of evidence in lieu of examination-in-chief and the affidavit of documents; that after he recovered from his ill-health, the Plaintiff prepared an affidavit of evidence, which was affirmed on 29 April 2010; that on 18 February 2011 the Plaintiff had gone out of Mumbai for urgent personal work and, as such, could not remain present in Mumbai on that day and had to instruct his Advocates to seek a short adjournment. The Plaintiff submits that in these premises and having regard to the fact that the Plaintiff has an excellent case on merits, the order of dismissal of the suit passed by this Court deserves to be set aside. The Plaintiff has, accordingly, applied for setting aside that order and restoration of the suit under Order IX Rule 9 of the Code of Civil Procedure, 1908.

5. Learned Advocate for Defendant No.1 has raised two preliminary objections to the maintainability of the present Notice of Motion. Firstly, it is contended that having regard to the provisions of Sections 3 and 4A of the Bombay City Civil Court Act, 1948 (“City Court Act”), the present Notice of Motion, being a proceeding of a civil nature arising within the City of Greater Mumbai and made cognizable by the Bombay City Civil Court, ought to be transferred to that Court. Secondly, it is submitted that the provisions of Order XVII Rule 2 read with the provisions of Order IX, do not apply to an application for restoration of a suit dismissed for non-prosecution, as in the instant case, and no application for setting aside the dismissal order can filed either under Rule 4 or Rule 9 of Order IX.

6. Let me take up first the issue of jurisdiction of the Court to entertain this Notice of Motion having regard to Sections 3 and 4A of the City Court Act. It is submitted by the learned Advocate for Defendant No.1 that by reason of the amendment of the City Court Act by Bombay City Civil Court (Amendment) Act, 2012