1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.2552 OF 2007 IN SUIT NO.344 OF 1999 M/s. Maneklal & Co. ...Plaintiff. Vs. P. C. Gandhi. ...Defendant. .... Mr. R. M. Singhavi, partner of the Plaintiff present in person. Dr. P.C. Gandhi, the Defendant present in person. ..... CORAM :DR.D.Y.CHANDRACHUD, J. January 9, 2008. P.C.: The suit has been placed on Board as an undefended suit for ex-parte decree. The attention of the Court has been drawn to the fact that a Notice of Motion has been taken out by the Defendant (Notice of Motion 2552 of 2007). The Plaintiff appears in person. The Notice of Motion is also on Board and has accordingly been heard. The principal relief that has been sought in the Notice of Motion is that the Written Statement of the Defendant be taken on the record and the suit be removed from the caption of 'Undefended Suits'. 2 In support of the Notice of Motion, it has been urged on behalf of the Defendant, who also appears in person, that the suit was dismissed for want of removal of office objections on 22nd December 1998 and according to his case, it was only on 24th March 2004 that the suit was restored. Secondly, it has been urged that the Plaintiff had himself taken out a Chamber Summons for converting the suit to a Summary Suit and it was in July 2007 that the Chamber Summons was withdrawn. Finally, it has been urged that the Defendant had to undergo imprisonment for a period of four months from September 2006, as a result of a conviction in proceedings under Section 138 of the Negotiable Instruments Act, 1881. The proceedings which took place in the suit have been adverted to in great detail in an order dated 24th March 2004 passed by Mr.Justice D.K. Deshmukh. From the order of the Court, it emerges that the suit was initially dismissed on 22nd December 1998 by the Prothonotary & Senior Master. A Chamber Summons was taken out by the Plaintiff on 4th February 1999 seeking an extension of time to comply with the objections and for setting aside the order of 3 the Prothonotary & Senior Master. In the meantime, on a praecipe moved by the Plaintiff, a Learned Single Judge of this Court restored the suit to file on 24th February 1999 subject to compliance of the office objections within three weeks. The Office objections were removed and the suit, therefore, stood restored. The Chamber Summons taken out by the Plaintiff was, therefore, rendered infructuous but it remained to be withdrawn. On 14th March 2000, the Chamber Summons was dismissed in default. In his order dated 24th March 2004, Mr.Justice D.K. Deshmukh held that upon the order of the Court dated 24th February 1999, the suit stood restored and the Plaintiff had duly removed the office objections within the time stipulated in the order. Consequently, the dismissal of the Chamber Summons for non-prosecution would not result in the dismissal of the suit which had already been restored. Mr.Justice Deshmukh observed as follows : “6. So far as order dt. 17.4.2001 passed by Hon'ble Mr.Justice R.M. Lodha is concerned, that order was passed because precepie was moved for speaking to the minutes and there was no question of speaking to the minutes of order because there was no mistake in the order. That order also not result in dismissing suit of plaintiff which was restored. So far as order dt. 17.10.2001, it appears that that order came to be passed because on that day plaintiff 4 was not able to produce before the Court all the relevant orders showing that the suit is already restored. In any case, even that order does not have result of dismissing suit which was already restored.” In view of the order passed by Mr.Justice Deshmukh on 24th March 2004, the Defendant is not correct in his submission that the suit was restored for the first time on 24th March 2004. The second contention of the Defendant that there was a delay in filing the Written Statement because of the Chamber Summons taken out by the Plaintiff for the conversion of the suit into a Summary Suit would not again carry the case any further because even the Chamber Summons was permitted to be withdrawn on 17th July 2007. It may be true that the Defendant was in judicial custody for a period of four months commencing from 18th September 2006, but that period of four months does not explain the long delay in filing the Written Statement in the suit since the service of the writ of Summons in 1999. However, having regard to the interests of justice and more particularly in the context of the fact that the Defendant has appeared 5 in person, I am of the view that the ends of justice would be met, if the Defendant is permitted to contest the suit by filing a Written Statement subject to the payment of costs to the Plaintiff. In fairness, it may be noted that the Plaintiff who appears in person, has also submitted before the Court that the Written Statement may be taken on record subject to an order of costs. In these circumstances, with a view to enable the Defendant to contest the suit, the Defendant is granted permission to file his Written Statement conditional on the payment of costs quantified at Rs.7,500/-. Payment of costs shall be effected within a period of two weeks from today and shall be a condition precedent. The Notice of Motion is accordingly disposed of since no other prayer has been pressed. ....