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 3824 of 2008. NOTICE OF MOTION NO 3824 of 2008. NOTICE OF MOTION NO 3824 of 2008. IN IN IN S.C.SUIT NO.1808 of 1981. S.C.SUIT NO.1808 of 1981. S.C.SUIT NO.1808 of 1981. Viren N. Solanki ..Plaintiff versus R.J.Pandey & Ors. ..Defendants Mr.D.D.Madan, Sr. Counsel with K.H.Mody for the plaintiff i/b. Bharati A. Desai Mr.H.J.Engineer i/b. M/s. Gordhandas Fozdar for defendant NOs.1A & 1B. Mr.S.B.Thorat for defendant No.2 in support of notice of motion. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 20th January, 2009. DATED : 20th January, 2009. DATED : 20th January, 2009. P.C. 1. This Notice of Motion is taken out by the defendant No.2 and he wants that delay of 24 years in filing the written statement be condoned and that he be permitted to file written statement. 2. Plaintiffs have filed affidavit in reply opposing the motion. Pleadings are complete. 3. I have heard learned Counsels on both the sides. The defendant No.2 has filed a detail affidavit as to why written statement could not be -2- filed for last 24 years. At the outset it is required to be mentioned that the said affidavit lacks relevant dates on the basis of which the case was sought to be put up by defendant No.2. The case shortly stated in the affidavit in support of the motion is as follows. 4. The defendant No.2 contacted his advocate in the year 1982-1983 and his signatures were obtained on certain writing, which writing was interpreted to him in Hindi. Thereafter, the defendant No.2 contacted the present advocate in the year 2007. That time he came to know that his advocate who was then appearing in the suit is appointed as a Judge of this Court. 5. Learned Counsel Mr. Thorat, appearing on behalf of defendant No.2 indicated to the Court that defendant No.2 contacted him in the year 2007 and thereafter steps were taken to attend to the matter. It is required to be mentioned that this defendant No.2 had taken out Chamber Summons No.1654 of 2007 for reliefs similar to the one taken out in the present notice of motion. However, that Chamber Summons was dismissed by -3- Order dated 29.7.2008 and it was contended that the said Chamber Summons was dismissed as appropriate proceeding should have been a notice of motion. The record of this motion shows that this motion was taken out in the month of November 2008 and affidavit in support of Notice of Motion was affirmed on 22.10.2008. In this affidavit in support no explanation is coming forth as to what was done by the defendant from 29.7.2008 till 22.10.2008, to that extent also the delay is not explained. 6. If one peruses the affidavit in support as a whole, no explanation is coming forth from defendant No.2 as to what he did from 1983 to 2007 for the purposes of attending to the present suit. One finds an averment in the affidavit in support that he normally stays at remote village at Yakubpur, Taluka & District Bhadoi in U.P. Even if this is accepted, still there is no explanation set out in the affidavit in support of motion as to in what way this defendant No.2 made efforts to gather information about the pendency of the suit and what he did to attend to the suit. In the affidavit in support, there is no date or month as to when he -4- contacted the present advocate in the year 2007, A perusal of affidavit in support would clearly go to show that no proper explanation is coming forth from the defendant No.2 as to what he was doing all along from 1982 to 2007 for the purpose of knowing about the suit which was pending. It was strenuously argued by learned Counsel Mr. Thorat that defendant No.2 is an illiterate person and he resides at remote village in U.P. It is possible to say that an illiterate person may not know in detail the various procedures to be followed in the Court. However, as a litigant he is supposed to know that at some stage and at some interval he is required to contact his advocate and know the stage of the proceeding. Nothing is mentioned in the affidavit in support as to what steps were taken by him to know from his advocate about the suit. Nothing is mentioned as whether any information was sought to be gathered from the co-defendants or even from the office of this Court. All this would clearly go to show that from 1982 to 1987 onwards, till 2007 defendant No.2 kept himself away from the litigation. If this be so, it is clear that defendant No.2 neglected the present litigation and in the result written statement was not filed by -5- him. 7. After coming to know about the matter, the defendant in the year 2007 through his present Advocate, took out Chamber Summons and after the disposal of the Chamber Summons, practically after three months the present notice of motion is taken out and hence one can easily observe that there is delay in attending to the matter even after the present defendant No.2 contacted his present advocate and came to know that the written statement is not filed. 8. In the affidavit in reply filed by the plaintiff, reference is made that defendant No.2 has signed some documents in the nature of consent terms and that now defendant No.2 wants to back out the consent terms and therefore now this attempt is made by the defendant No.2 to have the delay condoned and have the written statement on record so as to contest the suit. Even if we keep aside the said stand of the plaintiff, the fact remains that the defendant No.2 neglected in attending to the suit. -6- 9. In my view, considering the conduct of the Defendant and the delay I hold that this is not a case where delay can be condoned by directing the defendant No.2 to pay costs to the plaintiff. The present suit remained on the file of this Court, not on account on the plaintiff, but on account of general pendency of the Court and as such merely because the present suit is pending since 1981, cannot be considered as ground to take the things leniently so far as defendant No.2 is concerned. In my view, merely because the suit is pending since 1981, this Court should not show leniency to defendant No.2 who has not taken care to attend to his matter. 10. My attention was drawn by learned Counsel Mr. Thorat that in the year 2007 and 2009 some amendments have been carried out by the plaintiffs by taking out appropriate proceeding which are set out in paragraphs 7 and 9. According to Mr. Thorat those amendments are of substantial nature and would affect the rights of the parties and in particular defendant No.2. 11. In my view, merely because some amendments -7- have been carried out in the year 2007 and 2009, cannot be the ground to condone the conduct of the defendant No.2 and that cannot be the ground to grant defendant No.2 the relief sought in the motion. 12. In my view, this is not a case where the Court should show indulgence to defendant No.2 and grant relief to him. In the normal course, some costs would have been awarded to Plaintiff. However, in the peculiar facts and since defendant No.2 is facing the dismissal of the motion, I do not wish to saddle defendant No.2 with costs of this motion. The notice of motion is required to be dismissed. Hence the Order. ORDER Notice of Motion is dismissed with no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)