1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2828 OF 2010 IN SUIT NO.601 OF 2005 Smt.Vimal Bhaskar Karkera .. Plaintiff V/s Yeshwant Waman Patil .. Defendant Mr.S.S.Kudalkar for the plaintiff. Mr.G.B.Vaidya i/by M/s.Shelke & Co.for Defendant in support of the notice of motion. CORAM: R.G.KETKAR, J. DATE: 1st July, 2011. P.C.: 1. Defendant has taken out this notice of motion praying for condoning the delay of 1926 days caused in filing the written statement and for seeking leave to file written statement in Suit No.601 of 2005. 2. In support of this notice of motion, the Defendant has filed his affidavit wherein it is set out that after the service of writ of summons on 30.03.2005 he appointed Advocate to defend the suit and the said Advocate filed his vakalatnama in the matter. However, the written statement was not filed and eventually exparte decree was passed on 25.9.2008. It is averred that the 2 plaintiff took out Chamber Summos on 28.8.2009 for amending the exparte decree. The defendant acquired knowledge after service of the said chamber summons. He immediately filed notice of motion No.3574 of 2009 on 30.9.2009 for setting aside the exparte decree. He withdraw the said notice of motion on 8.1.2010 with liberty to file substantive appeal against the exparte decree. Defendant thereafter filed appeal No.127 of 2010 on 25.2.2010 challenging the decree dated 25.9.2008. After hearing both sides, by judgment and order dated 1.9.2010 Appeal No.127 of 2010 was allowed and the exparte decree was set aside. 3. Defendant has taken out this notice of motion on 29.9.2010 for the aforesaid relief. Heard Mr.Vaidya, learned counsel for the Defendant in support of the notice of motion. Learned counsel for the plaintiff opposed this notice of motion on the ground that the Defendant is not serious in defending the suit. Though the writ of summons was duly served, the defendant did not file written statement. The matter was listed before the Prothonotary & Sr.Master. Even at that time, the Defendant did not appear. Thus in short, his submission is that the Defendant is not serious in defending the suit and therefore, delay in filing the written 3 statement should not be condoned and Defendant should not be granted leave to defend. 4. I have considered the rival submission made by learned counsel appearing for the parties. It is not in dispute that the defendant took out Notice of Motion No.3574 of 2009 on 30.9.2009 for setting aside the exparte decree. That motion was allowed to be withdrawn on 8.1.2010 with liberty to file appeal. Pursuant to the liberty granted, defendant filed appeal on 25.2.2010. It is equally not in dispute that the exparte decree dated 25.9.2008 was ultimately set aside on 1.9.2010 and the present notice of motion is taken out on 29.9.2010. The grounds urged by learned counsel for the plaintiff in opposition of this notice of motion were relevant for considering whether the exparte decree should be set aside or not. Now that question is no longer open as the appeal preferred by the Defendant is allowed by this Court and the exparte decree is set aside on 1.9.2010. Defendant has taken out this notice of motion on 29.9.2010. 5. Having regard to these facts, in my opinion, Defendant has made out case for condoning the delay in filing the written statement as also for granting leave to defend the suit, subject to payment of 4 costs of Rs.5000/- to be paid to the plaintiff. Hence, I pass the following order:- (i) Notice of motion is made absolute in terms of prayer clauses (a) and (b) subject to Defendant paying costs of Rs. 5000/- to the plaintiff within a period of two weeks from today. (ii) Defendant is granted two weeks time from today, to file the written statement in Suit No.601 of 2005. (iii) Notice of motion stands disposed of in the aforesaid terms. (R.G.KETKAR, J.)