1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO.11 OF 2009 IN SUIT NO.3634 OF 1994 WITH NOTICE OF MOTION NO.12 OF 2009 IN SUIT NO.3643 OF 1994 The Mahanagar Telephone Nigam Ltd. ..Plaintiff. vs. Mr. Pothan Babu Narasayya. ..Defendant. .... Ms. Bharati J. Thakkar, for Plaintiff. Mrs. Dipti Babu Pothan, wife of Defendant, present. .... CORAM : S.J.KATHAWALLA, J. DATE : 26TH JUNE 2009. P.C. Not on Board. At the request of the Advocate for the plaintiff, taken on Board. 2. The wife of the defendant is present in person. She has informed the Court that her husband, the defendant, is bedridden, since he has suffered a paralytic stroke since last 4 years. She has further informed the Court that she is working as a maid in some of 2 the houses and looking after her 3 daughters, who are studying. She has submitted that she has no house of her own and there is no income except for what she is earning. She submits that she has no knowledge of these suits, but has attended the Court upon receiving notice in the matter. She has also produced several documents of K.E.M. hospital showing that the defendant is suffering from neurological problems. 3. Both the suits are filed by M.T.N.L. against the defendant for recovery of their telephone bills. Initially, the defendant was appearing in person. On 29 th July 1999, the defendant was absent. The suit was therefore transferred to the list of undefended suits and was directed to appear on Board after four weeks. On 22 nd February 2000, the Advocate for the defendant forwarded written statements to the Advocate for the plaintiff in the above two suits. The Advocate for the plaintiff accepted the same and put the following endorsement “Received without prejudice as matter is for ex-parte decree.” The learned Advocate for the plaintiff in the next eight years not only did not consent to the written statements being taken on record, but also 3 did not move to have the matters placed for ex-parte decree. 4. On 7 th February 2008, this Court by its order had placed the suits for ex-parte decree on the ground that no written statement was filed and the plaintiff was directed to file their affidavit of evidence and documents. Despite 4 weeks time having elapsed, the plaintiff failed to comply with the directions given by the said order dated 7 th February 2008. 5. On 7 th March 2009, once again an opportunity was given to the plaintiff and a conditional order was passed directing the plaintiff to file their documents/evidence within a stipulated period of 4 weeks i.e. on or before 7 th April 2008 and it was provided in the order that if the plaintiff once again fail to comply with the order of filing of documents and evidence, the suit would stand automatically dismissed for non-prosecution. 6. Again the plaintiff failed to comply with the directions dated 7 th March 2009, passed by this Court and the suits stood dismissed on 7 th April 2008. 7. Both the notice of motions are now taken out by the 4 plaintiff (M.T.N.L.) for setting aside the order dated 7 th March 2008. The only contention raised is that the plaintiff were not aware that the conditional order has been passed and the plaintiff came to know about this only when the plaintiff had the suits placed for ex-parte decree before this Court on 12 th December 2008, which suit were obviously removed from the Board, since the plaintiff were not entitled to an ex-parte decree, after the suit was dismissed. The contention of the plaintiff that they were not aware of the conditional order, cannot be accepted since the plaintiff were represented by an Advocate when the said order dated 7 th March 2008 was passed. 8. In view thereof, in my view, no case has been made out on behalf of the plaintiff for restoration of the suits. Both the notice of motions are therefore, dismissed with no order as to costs. [ S.J.KATHAWALLA, J. ]