- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.2130 OF 2007 OF MOTION NO.2130 OF 2007 OF MOTION NO.2130 OF 2007 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO.1596 OF 1983 SUIT NO.1596 OF 1983 SUIT NO.1596 OF 1983 Madhusudan Laxminiwas Rungta ...Plaintiff vs. M/s.Jaico Real Estate Service & Ors. ...Defendants Mr.A.S.Doctor i/b M/s.Kanga & Co. for the plaintiff Mr.Purohit i/b M/s.Purohit & Co. for the defendants CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : OCTOBER 22,2008 : OCTOBER 22,2008 : OCTOBER 22,2008 P.C.: P.C.: P.C.: 1. Heard the learned counsel for the plaintiffs in support of the notice of motion. The prayer in the notice of motion is that the suit be placed for passing an exparte decree against the 1st and 3rd defendants under Rule 10 of Order VIII of Code of Civil Procedure,1908 as the said defendants have failed to file the written statement in spite of the order dated 22nd April 1998 passed by this court. 2. I find that the 2nd defendant has already filed written statement. The 1st defendant is a partnership firm. It is alleged that the 2nd and 3rd defendants are the partners of the 1st defendant firm. Considering the fact that the 2nd defendant is contesting the suit by filing the written statement, this is not a case where a decree under Rule 10 of Order VIII of the said Code can be passed against the 1st defendant-firm and 3rd defendant partner. Therefore, the - 2 - prayer made in this notice of motion cannot be acceded to. 3. At this stage, the learned counsel for the 1st and 3rd defendants tendered written statement. The learned counsel for the plaintiffs submitted that the written statement cannot be taken on record. He invited my attention to the order dated 22nd April 1998 passed by this court in the Notice of Motion No.356 of 1997 by which earlier exparte decree passed in favour of the plaintiff has been set aside subject to condition of the defendants paying costs of Rs.1000/- to the plaintiffs. By the said order, time of two weeks was granted to the defendants for filing written statement. He, therefore, submitted that the written statement cannot be taken on record after lapse of more than 10 years especially when till today the cost of Rs.1000/- has not been paid by the concerned defendant. 4. It is true that there is a default on the part of the 1st and 3rd defendants. Nevertheless, the suit has remained pending till today and now the written statement is sought to be tendered by the said defendants. The 2nd defendant, as stated earlier, has already filed his written statement. Indulgence deserves to be shown to the 1st and 3rd defendants subject to the said defendants paying substantial amount by way of costs. - 3 - 5. Hence, I pass the following order : i) Notice of motion is dismissed. ii) The written statements tendered by the 1st and 3rd defendants shall be taken on record subject to 1st and 3rd defendants paying costs of Rs.10,000/- to the plaintiffs within a period of six weeks from today. Payment of costs will be a condition precedent. iii) The suit shall be set down for framing issues on 3rd December 2008. JUDGE JUDGE JUDGE