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. 3144 OF 2008 NOTICE OF MOTION NO. 3144 OF 2008 NOTICE OF MOTION NO. 3144 OF 2008 IN IN IN SUIT NO. 1206 OF 2000 SUIT NO. 1206 OF 2000 SUIT NO. 1206 OF 2000 ALONGWITH ALONGWITH ALONGWITH CHAMBER SUMMONS NO. 540 OF 2008 CHAMBER SUMMONS NO. 540 OF 2008 CHAMBER SUMMONS NO. 540 OF 2008 IN IN IN SUIT NO. 1206 OF 2008 SUIT NO. 1206 OF 2008 SUIT NO. 1206 OF 2008 Tayebali Akberali Sohagpuriwala ...Plaintiff vs. Khozema Mulla Akberali Lokhandwala & Ors...Defendants Chamber Summons No.540/2008 which is not on board is taken on board. Mr.Vivek Kantawala for the Plaintiff. Ms.Mamta Sadh i/b. M/s.Zohair & Co. for Defendant Nos.2 and 3. Mr.Jariwala i/b. M/s.Thakore Jariwala & Associates for Defendant No.1 and Applicant in Chamber Summons No.540/2008. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : SEPTEMBER 18, 2008 DATED : SEPTEMBER 18, 2008 DATED : SEPTEMBER 18, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for defendant no.1 and Counsel for Defendant Nos.2 and 3. 2. Defendant Nos.2 and 3 have taken out this Motion No.3144/2008 for condonation of delay in filing the - 2 - written statement. Chamber Summons No.540/2008 is taken out by defendant no.1 seeking permission to file the written statement and for setting aside order dated 28th March, 2008 whereby the Prothonotary & Senior Master had directed that the suit to be decided as "Undefended Suit". Counsel for the defendant nos.2 and 3 submits that though the written statement was ready, inadvertently, it could not be filed before the Prothonotary and therefore, the order was passed by the Prothonotary directing the suit be decided under the caption of "Undefended Suits". Counsel for the defendant no.1 has also made similar prayer. 3. Shri Kantawala, Counsel for the plaintiff has vehemently opposed this application for condonation of delay and for setting aside order passed by the Prothonotary dated 27th March and 28th March, 2008. He submitted that initially a direction was given by the Division Bench in appeal that the defendants should file their written statements within four weeks. Thereafter, again an application was made for extension of time and time was accordingly extended by a further period of - 3 - four weeks and inspite of that, the defendants have not filed their written statement. It is further submitted that there is no explanation given in the affidavit in support as to why delay was caused in filing the written statements. He submitted that therefore, Notice of Motion and Chamber Summons should be dismissed with costs. 4. This is an administrative suit filed by the plaintiff for the administration of the property more particularly described in the schedule to the plaint. The parties are brothers and sisters. It is no doubt true that though time was given by the Division Bench, the defendants have not filed the written statements within the said period. Defendant Nos.2 and 3 have stated that the written statement was ready, however, it could not be filed. 5. In my view, a delay caused in filing the written statements should be condoned and the suit be decided on merits. The delay, accordingly, in filing the written statements is condoned. The order passed by the - 4 - Prothonotary & Senior Master dated 27th and 28th March, 2008 against the defendants is set aside. The suit is restored to the file. Counsel for defendant nos.2 and 3 and Counsel for defendant no.1 have tendered the written statements in court which are taken on record. The defendants no.2 and 3, however, shall pay the costs which are quantified at Rs.5000/-. Counsel for the plaintiff submits that he has no objection if the said costs is paid to the Bombay High Court Law Library. 6. Copies of the written statements are already served on the plaintiff. The plaintiff to file affidavit in lieu of evidence and affidavit of documents within two weeks. Inspection to be taken by the defendants within one week thereafter. 7. S.O. one week for framing of issues. 8. Both the Notice of Motion and the Chamber Summons are disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)