1 CHS1484.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1484 OF 2010 IN SUMMARY SUIT NO. 2523 OF 2001 Kasamali Suleman Zaveri. ... Plaintiff. V/s. Mrs. Noorjahan S. Somani & Anr. ... Defendants. Mr. M.L. Palan with Ms. Paravathy Kaushik i/b. B.S. Chandani for the Plaintiff. Mr. Bhaven Gada with Yogini Gada i/b. M/s. Harakhchand & Co. for the Defendants/Applicants in CHS. CORAM : R.Y. GANOO, J. DATED : 18th OCTOBER 2010. P.C. :- This Chamber Summons is taken out for two prayers. By prayer clause (a) leave under clause XII of Letters Patent granted by the Court is sought to be revoked. By prayer clause (b), delay of 3370 days in taking out the present Chamber Summons is sought to be condoned. 2. Learned Counsel Mr. Palan appearing on behalf of the Plaintiff submitted that the copy of the Chamber Summons was served upon the Advocate for the Plaintiff on Saturday i.e. 2 CHS1484.10.sxw 16th October 2010. He submitted that he will be opposing the Chamber Summons on the basis of the record without filing a formal affidavit in reply. In view of the above, Chamber Summons is taken up for hearing as today. 3. As the Plaintiff is a Senior Citizen, the Suit was ordered to be expedited and was posted today for recording of evidence. 4. The sequence in which the prayers are made is defective inasmuch as it was necessary for the Defendants to pray for condonation of delay by way of prayer clause (a) and then prayer clause (b) could have been added for setting aside the leave. 5. The Plaintiff sought leave under clause XII of the Letters Patent which was granted. Thereafter, Writ of Summons was issued. It was served upon the Defendants on 7th February 2002 as admitted by the learned Counsel for the Defendants. Thereafter, the Plaintiff took out first Summons for Judgment and affidavit in reply came to be filed in the said Summons for Judgment in 2003 being affidavit in reply dated 10th June 2003. The Defendants in the said affidavit in reply at paragraph 4 submitted that leave under clause XII of the Letters Patent has been sought by making false statement and the said leave should be revoked. Said Summons for Judgment was subsequently withdrawn. It is noticed that ultimately, Summons for Judgment No. 345 of 2009 was taken out by the 3 CHS1484.10.sxw Plaintiff. Same was decided by order dated 6th April 2010. Defendants were granted unconditional leave to defend the Suit and written statement was filed. Thereafter, issues were framed on 17th September 2010. 6. Parties were directed to comply with the formalities regarding affidavits etc. and evidence affidavit was ordered to be filed. On 8th October 2010, matter was adjourned to today on 12.00 noon for recording of evidence. With these developments, today the matter was on Board. As it was called out, learned Counsel Mr. Gada submitted that the Chamber Summons for revocation of leave under clause 12 is taken out and the same be taken up for hearing first. 7. The Defendants concede that there is a delay of 3370 days in filing the present Chamber Summons. I have considered the relevant dates. In the affidavit in support of the Chamber Summons at paragraph 11, the averments have been set out as to why there has been a delay and it is specifically stated in the said affidavit in support that at the time when the issues came to be framed, the Court had indicated to the Defendants that the Defendants may have to take out appropriate proceedings for revocation of the leave. It is to be mentioned that the Court has expressed such a view by way of a general remark. Fact remains that when the Writ of Summons was served upon the Defendants way back in 2002, it came to be knowledge of the Defendants various averments on the basis of the Suit came to be filed at 4 CHS1484.10.sxw Mumbai. Certainly, affidavit in reply came to be filed in Summons for Judgment No. 252 of 2002 in June 2003. Reading of the reply shows that the Defendants knew that leave under clause XII was granted. In para 27 of said affidavit in reply dated 10th June 2003, the Defendants had raised contentions concerning grant of leave under Clause XII of Letters Patent. A specific submissions was made that leave granted be revoked. 8. The Defendants have conceded that there is a delay of 3370 days. Looking to the explanation given in paragraph 11 of the affidavit in support, I am not inclined to accept the said explanation. The conduct on part of the Defendants is clearly of such a nature that the delay in taking out the present Chamber Summons cannot be granted. 9. So far as the merit of the matter are concerned, the Court has framed an issue as regards the jurisdiction of this Court as follows :- “ Do the Defendants prove that this Court has no jurisdiction to try and entertain this Suit ?” 10. Today, the Suit is at the stage of recording of evidence. Certainly, the Court will answer the issue as regards the jurisdiction. If on merits, the Court comes to the conclusion that this Court has no jurisdiction, the plaint will have to be returned to the Plaintiff for filing it in the proper Court. 5 CHS1484.10.sxw 11. For the aforesaid reasons, I am not inclined to condone the delay in taking out the present Chamber Summons. Consequently, prayer for revocation of the leave under clause XII of the Letters Patent cannot be granted. 12. In the peculiar facts and circumstances and the way in which the Defendants have conducted in the matter, I am inclined to direct the Defendants to pay to the Plaintiff the costs of this Chamber Summons which is fixed at Rs.5,000/-. 13. Hence, following order is passed to dispose of this Chamber Summons :- (i) Prayer for condonation of delay of 3370 days in taking out the present Chamber Summons is rejected. (ii) Consequently, the prayer for revocation of leave under clause XII of the Letters Patent is also rejected. (iii) The Defendants do pay to the Plaintiff costs quantified at Rs.5,000/- of this Chamber Summons. (iv) Costs to be paid to the Plaintiff on or before 29th October 2010. 6 CHS1484.10.sxw (v) Suit to proceed for recording of evidence as per separate order. (R.Y. GANOO, J.)