1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3970 OF 2008 IN SUIT NO. 856 OF 1982 Radient Metals and Allied Ltd. .. Plaintiff Vs. Rajendrakumar Jain & Anr. .. Defendants Ms. Asha Limhan i/b Vinay J. Hegde for the Plaintiff. Ms. J. A. Sarkhot i/b R. V. Govilkar for the Defendants. CORAM : MRS. R. S. DALVI, J. DATE : 18th March, 2010. P.C. 1. Suit filed in 1982 has been decreed ex parte on 31.01.2004. Four years thereafter this Notice of Motion has been taken out under Order IX Rule 13 of the Civil Procedure Code. 2. The plaintiff’s Advocate claims that the Notice of Motion is not maintainable since the written statement has been filed and the issues were framed. In the case of Balu @ Madhavrao Shankarrao & Ors. Vs. Radhakkabai Panditrao Ghorpade & Ors. (2004 (1) Bom. C. R. 77, it has been held that even when the written statement is filed and issues are framed but the defendant never appeared for evidence and 2 no evidence of defendant is recorded, the order passing the decree under Order XVII Rule 2 of the Civil Procedure Code would be an ex parte decree. If it is ex parte, the Notice of Motion to set it aside would be maintainable. 3. On merits it is defendant’s case that the defendant’s Advocate at the relevant time did not inform the defendant that the suit had reached herein and did not take instructions. The defendant came to know of this decree only through another Advocate who noted on the internet the date of disposal of the suit and obtained order which was uploaded on the internet. 4. It is as much for defendant to keep contact with his Advocate as it is the duty of the Advocate to keep any contact with the matter and inform his client when the suit reached hearing. Hence, the negligence is of both the defendants and their Advocate and not only defendants’ Advocate. The defendants must bear the burden of that negligence. Nevertheless, the defendants require to be heard on merits. 5. Hence upon paying costs of Rs.10,000/- within two weeks, this notice of motion is made absolute in terms of prayer clause (a) & (b). In that case the execution of the decree by the Court Receiver taking possession would also be required to be stayed. 3 6. If the costs are not paid within two weeks, the Notice of Motion shall stand dismissed. 7. If the costs are paid, the suit shall proceed to hearing. 8. The written statement is filed, issues are framed. Affidavit of evidence of plaintiff is taken on record. The plaintiff’s Advocate shall serve copy of the affidavit of examination-in-chief of the plaintiff upon defendants within 1 week of the payment of costs. In that case the defendants shall be entitled to cross-examine the plaintiff’s witnesses before the Commissioner. Directions for appointment of Commissioner shall be passed after three weeks. 9. Suit is adjourned to 12th April, 2010. (R. S. DALVI, J.)