1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.1617 OF 2009 IN SUIT NO.307 OF 1997 Armaity Jimmy Sukhia ..Plaintiff. Vs. Victoria Sukhia ..Defendant. .... Mr. M. Sanghavi, Senior Advocate with Mrs. M.P. Shroff for the Plaintiff. Ms. Firdoos Moosa i/b Prakash Mahadik for the Defendant. ..... CORAM: DR. D.Y. CHANDRACHUD, J. 5th May, 2009. P.C. : 1. The Notice of Motion has been taken out for permission to file the written statement and to condone the delay of 203 days. On 8th August, 2003 the Prothonotary and Senior Master granted eight weeks’ time to the Defendant to file the written statement. In paragraph 2 of the affidavit in support it has been stated that the written statement was ready on 28th April, 2004 for filing at which stage there was a delay of 2 203 days. When the advocate approached the registry to file the written statement, he was informed that the consent of the Plaintiff would be required as, on 8th October, 2003 the suit had appeared before the Prothonotary and Senior Master and an order was passed to transfer it to the list of undefended suits. Thereafter the matter did not appear on the Board of this Court until 28th April, 2009. It has been averred that the advocate is not aware that the matter had appeared before the Prothonotary on 8th October, 2003 and of an order being passed on 28th April, 2009. The Motion has been opposed vigorously. It is true that there has been a delay on the part of the Defendant in filing the written statement. However, it would appear that as a matter of fact the suit did not appear on Board at all until 28th April, 2009. In these circumstances, there is no reason why the Defendant should be deprived of an opportunity to contest the suit on merits. This, however, should be subject to the payment of costs. Costs are quantified at Rs.5,000/- which shall be a condition precedent. 2. Counsel appearing for the Plaintiff has, however, drawn the 3 attention of the Court to an order dated 9th July, 1997 passed by Mr. Justice S.S. Nijjar (as He then was) while disposing of a Notice of Motion taken out by the Plaintiff for the grant of interim relief. The Motion was made absolute in terms of prayer clause (a) subject to the clarification that the Defendant would be at liberty to use the name Ms.Victoria Sukhia or Ms. Ayesha Victoria Sukhia. The affidavit in support of the Notice of Motion has been filed by the Defendant purporting to call herself Mrs. Victoria Jimmy Sukhia. This plainly is in violation of the order passed by the Learned Single Judge in the Notice of Motion. So long as the order continues to hold the field, the Defendant is bound to comply with the order. Counsel appearing for the Defendant has fairly stated before the Court that she would duly correct the name of the deponent in the affidavit in support of the Notice of Motion dated 27th April, 2009. Permission to do so is accordingly granted. The learned advocate further states that the verification of the written statement shall also be corrected in compliance with the order passed by the Learned Single Judge in the Notice of Motion. Undoubtedly, this is subject to the final decision of the suit. Since the learned advocate appearing for the 4 Defendant has in view of the objection raised by the Plaintiff corrected the record, there is no reason why the relief that has been sought in the Motion should not be granted. The Notice of Motion is made absolute in terms of prayer clause (a) by condoning the delay and taking the written statement on the record subject to the payment of costs quantified at Rs.5,000/- which is a condition precedent. Costs to be paid within a period of one week from today. *****