: 1 : 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.94 OF 2008 NOTICE OF MOTION NO.94 OF 2008 NOTICE OF MOTION NO.94 OF 2008 IN IN IN SUIT NO.1609 OF 1990 SUIT NO.1609 OF 1990 SUIT NO.1609 OF 1990 Smt.Prabha Gangadhar Joshi & Ors. .. Plaintiffs. Versus Naraindas Karsandas & Ors. .. Defendants. Plaintiffs 2 and 3 are present in person. Mr.K.H.Mody i/b.Kishore Shreyon for defendant No.1. Mr.Snehal Shah i/b.Wadia & Gandhi & Co. for defendant No.3. Mr.N.M.Ganguli for defendant No.4. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 11th August, 2008. DATE : 11th August, 2008. DATE : 11th August, 2008. P.C. :- P.C. :- P.C. :- 1. Notice of Motion No.94 of 2008 is taken out by defendant No.1 so as to have delay in filing the written statement be condoned and to have the written statement on : 2 : record. Plaintiff Nos.2 and 3 have filed affidavit-in-reply. Defendant No.4 has filed affidavit-in-reply. Defendant No.3 has not filed any affidavit-in-reply. 2. It appears that plaintiff Nos.2 and 3 are trying to rely upon affidavit-in-reply filed by defendant No.4. 3. I have heard learned Advocates on both the sides. Learned Advocate appearing on behalf of defendant No.1 has indicated to the court that after purchasing the suit property in public auction, defendant No.1 has disposed off the property in favour of defendants 2 and 3 by private agreement and defendant No.1 is practically out of the run sofar as present property is concerned. 4. After perusing the affidavit in support of the notice of motion, it is clear that the defendant No.1 wants to file written statement so as to keep the record straight and assist the court in resolving the present dispute. The explanation tendered in the affidavit in support of the notice of motion, in particular, at para 3 can be accepted, particularly, because the written statement was declared on 22.9.2004 which remained to be : 3 : filed in court. 5. A faint contention is raised by Mr.Ganguli appearing on behalf of defendant No.4 that there is a collusion between defendant No.1 and defendant No.3 inasmuch though the original written statement was declared by the defendant No.1, this affidavit in support of this notice of motion is taken out by defendant No.3 in her capacity as a power of attorney of defendant No.1 6. After having considered the entire matter and noticing the change in circumstances, namely, defendant No.1 has sold the suit property to defendants 2 and 3, role of defendant No.1 is absolutely limited. I am, therefore, inclined to permit the defendant No.1 to file written statement subject to payment of costs of Rs.3,000/- to be paid to plaintiff Nos.2 and 3. For the reasons mentioned aforesaid, I pass the following order :- O R D E R O R D E R O R D E R i) Notice of motion is made absolute in terms of prayer clauses (a) and (b). : 4 : ii) Defendant No.1 to pay costs quantified at Rs.3,000/- to plaintiff Nos.2 and 3 for this motion. Defendant No.1 to pay to plaintiff Nos.2 and 3 costs of Rs.3,000/- on or before 22.8.2008. iii) Written statement tendered by defendant No.1 is taken on record subject to complying with the payment of costs. 7. At the stage, plaintiffs 2 and 3, who are present in court admit having received costs of Rs.3,000/- jointly. 8. Notice of motion stands disposed off in the above terms. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)