1 IN THE PARSI CHIEF MATRIMONIAL COURT AT BOMBAY NOTICE OF MOTION NO.10 OF 2009 IN SUIT NO.5 OF 2009 Naheed Nowzar Attaie ..Plaintiff. Vs. Nowzar Nariman Attaie ..Defendant. .... Ms. T.F. Irani i/b Parvez S. Daruwala for the Plaintiff. Mr. Sameer Tendulkar with Ms. Sunita Khamkar for the Defendant. ..... CORAM : DR. D.Y.CHANDRACHUD, J. 28th January, 2010. P.C.: 1. The Motion has been taken out for recalling an order passed on 7th May, 2009 in Notice of Motion 5 of 2009. On 26th November, 2009 the Learned Single Judge recorded the submission of the Defendant that the earlier Motion had not been served upon him. Counsel appearing for the Plaintiff specifically stated that the Motion was not served but submitted that the Court had taken up the Notice of Motion for final hearing after noticing the conduct of the Defendant as reflected in the affidavit of service dated 5th March, 2009. In the circumstances, the Learned Single Judge has directed the registry to place the Notice of Motion for recalling the earlier order before the same Judge who passed the order dated 7th May, 2009. Accordingly, the Notice of Motion has been placed before this Court. 2. The order of the Court dated 7th May, 2009 proceeds on the basis 2 that an attempt has been made to serve the Defendant on 6th February, 2009 but that he had refused service and that on 9th February, 2009 the Plaintiff and the bailiff were denied entry by the security guards stationed at the premises where the Defendant resides. This has been referred to in more than one place in paragraph 2 of the order dated 7th May, 2009. As already noted earlier, counsel appearing on behalf of the Plaintiff stated before the Court on 26th November, 2009 that the Notice of Motion had not been served upon the Defendant. The same statement is made before the Court today. As a matter of fact, it would also be necessary to note that Notice of Motion 5 of 2009 was lodged on or about 24th March, 2009 and the affidavit in support was also of that date. Hence, the reference to the service which was attempted on 6th February, 2009 cannot have any reference to service of the Notice of Motion. Since the Defendant was admittedly not served with the earlier Notice of Motion, it would appear that the order was passed on the erroneous premise that he had been served and would have to be recalled. Accordingly the Notice of Motion is made absolute in terms of prayer clause (a) by recalling the order dated 7th May, 2009. Notice of Motion 5 of 2009 shall now be placed before the regular Bench in accordance with the assignment of work. Counsel appearing on behalf of the Defendant waives service of Notice of Motion 5 of 2009. *****