1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY & ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2779 OF 2009 IN SUIT NO. 1367 OF 1996 Kanji Nanji Gala & Ors. ... Plaintiffs. V/s. Mahadeo Deoram Bodke & Ors. ... Defendants. Mr. Varsha Palav for the Plaintiffs. Mr. Santosh Naravade i/b. M.P. Vashi & Assoc. for the Defendants. CORAM : S.C. DHARMADHIKARI,J. DATED : 09th OCTOBER 2009. P.C. :- Perused the Application and the affidavit in support and reply. 2. This is an application by the Defendants who are the heirs and legal representatives of one Mahadeo Deoram Bodke (since deceased), they state that the Suit was filed in the year 1996 and during the pendency of the Suit, their father, the original Defendant expired on 7th January 2004. The Plaintiffs thereafter applied for amendment to the plaint and the amendment was allowed. However, the amended plaint and the writ of summons was not served but subsequently, they received an affidavit in lieu of examination 2 in chief of the Plaintiffs at which point of time the heirs realised that there was no written statement on record and the proceedings must be defended. The reason stated for the delay is that one of the Defendants is abroad and the other Defendant, who is mother, is illiterate. In these circumstances, when the heirs are defending the claim and since the Suit is pending, the Written Statement be taken on record. 3. However, Ms. Palav, learned Advocate appearing on behalf of the Plaintiffs relies on affidavit in reply and states that this Court allowed the Chamber Summons on 15th February 2005. It was allowed after the Court was satisfied that each of the Defendants now impleaded, are served with the copy of the affidavit in support of the Chamber Summons. 4. When the matter has now proceeded ex-parte and more than four years have lapsed from the date of the impleadment, the Defendant should not be permitted to file any written statement. 5. It is settled that the Civil Procedure Code as amended in 2002 does not apply to the Suits filed on the Original Side of this Court. Yet, the view consistently taken is that the delay can be condoned provided there is sufficient cause shown for not being able to file the defence/written statement. In the instant case, the heirs have been impleaded by an order passed in the year 2005. Ordinarily, the right to defend the 3 proceedings should not be taken away unless the conduct of the parties is such as could be termed as utter negligence, total callousness or lacking in bonafides. In the instant case, it is pointed out that the heirs are none other than the widow who is illiterate and the son, who is abroad. In such circumstances, absence of legal advice does not mean that the parties should be prevented from defending the proceedings. By compensating the Plaintiffs with a direction to pay costs and putting the Defendants to terms, the Motion can be allowed. 6. Accordingly, the Notice of Motion is made absolute in terms of prayer clause (a). If the Written Statement is filed within a period of four weeks from today with costs quantified at Rs.5,000/- being paid to the Plaintiffs’ Advocate, the Defendants will be allowed to participate and defend the claim of the Plaintiffs. In default, the Suit shall proceed ex-parte and thereafter, no request for filing any written statement will be granted. (S.C. DHARMADHIKARI,J.)