IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1247 of 2008. NOTICE OF MOTION NO.1247 of 2008. NOTICE OF MOTION NO.1247 of 2008. IN IN IN SUIT NO.1808 of 2001. SUIT NO.1808 of 2001. SUIT NO.1808 of 2001. Viran Balwantsingh Solanki ..Plaintiff versus Pushpadevi Rajesh Mishra & Ors. ..Defendants Mr.D.D.Madan, K.H.Modi i/b. Bharat A. Desai for the Plaintiff Mr.S.J.Engineer i/b. M/s. Gordhandas & Fozdar for the Defendants1A & 1B. Mr.S.P.Thorat for the defendant No.2 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 16th Oct., 2008. DATED : 16th Oct., 2008. DATED : 16th Oct., 2008. P.C. 1. This motion is taken out by the plaintiff so as to seek an Order that compromise arrived at between the plaintiff and the defendant No.2 in terms of consent terms dated 30.4.1986 be taken on record and decree in terms thereto be passed in favour of the plaintiff against the defendant No.2. The defendant No.2 has filed affidavit in reply opposing the relief sought in the motion. 2. The plaintiff has admitted in affidavit in support of the Notice of Motion that decree has been passed in terms of the consent terms on -2- 19.6.2007 and 15.1.2008 against the defendant Nos.1 and 3 who have been brought on record as defendant Nos.1(a), 1(b) and 3(a). The suit was originally filed against the defendant Nos.1 to 3. According to the plaintiff decree is already passed so far as defendant Nos.1/3 or their heirs. The suit is subsisting so far as defendant No.2 is concerned. The plaintiff in order to have relief in this Notice of Motion are resting on what may be referred to as the document titled as consent terms undated April, 1986, on which according to the plaintiff signature of defendant No.2 is found. Plaintiff has also relied upon the declaration purported to have been executed by the present defendant No.2. on 5.5.1988 thereby confirming the signing of the consent terms and other related documents. 3. In the midst of the arguments, learned Senior Counsel Mr. Madan appearing for the plaintiff pleaded for withdrawal of this Notice of Motion and submitted that the plaintiff will prosecute the suit so far as defendant No.2 is concerned and while doing so the plaintiff shall make use of the document titled as consent terms as -3- well as the document which is in the nature of affidavit affirmed on 5.8.1988 by defendant No.2 4. I see no difficulty in accepting the submission of the learned Counsel Mr. Madan and I am inclined to allow the plaintiff to withdraw this motion and allow the plaintiff to use such documents as he desire to have decree in their favour against defendant No.2, including the two documents on the basis of which this motion is taken out. For the reasons mentioned aforesaid, I pass the following Order. ORDER . Plaintiff’s Notice of Motion is allowed to be withdrawn with liberty to the plaintiff to prosecute the suit with further liberty to plaintiff to use such documents as they desire, to secure decree against defendant No.2 including the two documents which are mentioned in the body of the judgment i.e. documents on the basis of which this motion was taken out. . Learned Senior Counsel Mr. Madan seeks liberty to file additional affidavit keeping in -4- view the subsequent developments which have taken place after the year 1986 and the withdrawal of this Notice of Motion. . Liberty is granted to the plaintiff accordingly. . The plaintiff is directed to supply to learned Advocate Mr.S.P.Thorat for defendant No.2 copy of the evidence affidavit which is already on record, xerox copies of the documents which the plaintiff would like to rely upon and new affidavit which the plaintiff may like to file and use it in the Court. . At this stage, learned Advocate Mr. Thorat states that defendant No.2 has not filed written statement in the matter for various reasons. He seeks liberty to file Notice of Motion for the appropriate reliefs so as to see that the written statement is brought on record. There is no need for the Court to grant such liberty. It is open for the defendant No.2 to look into the matter as he may like. -5- . Suit set down for recording of evidence on 20.11.2008. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)