1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.3455 OF 2008 IN SUMMONS FOR JUDGMENT NO.239 OF 2003 IN SUMMARY SUIT NO.4054 OF 1998 WITH SUMMARY SUIT NO.4054 OF 1998 Farokh N. Pavri. ...Plaintiff. Versus Euro Vistaa Trading Co. Ltd. ...Defendant. ....... Mr.Jose George for the Plaintiff. Mr. Anand Kumar for the Defendant. ...... CORAM : DR. D.Y. CHANDRACHUD, J. July 28, 2009. P.C.: In a Summary Suit under Order 37 of the Code of Civil Procedure, 1908, a Summons for Judgment was taken out. The returnable date was 4th April 2003. The Summons for Judgment appeared on Board on 17th August 2004 and 25th August 2004 and was adjourned in the absence of any appearance for the parties. On 15th September 2004, the Summons for Judgment came to be dismissed in default. The Notice of Motion for restoration of the Summons for Judgment has been filed on 24th September 2008. The 2 Plaintiff seeks a condonation of delay of nearly four years and nine days in moving the Motion and seeks restoration of the Summons for Judgment. -2. The explanation which has been furnished in paragraph 3 of the affidavit in support is that whenever the Plaintiff contacted his earlier Advocate, he was informed that “the matter is still pending in the Court for hearing”. However, when another Summary Suit of the year 1999 in which the Plaintiff to these proceedings was impleaded as the Defendant, started appearing on Board for final hearing in July 2008, the Plaintiff claims to have made enquiries with his previous Advocate. Not receiving a satisfactory reply, the Plaintiff engaged a new Advocate and upon taking inspection, it transpired that the Summons for Judgment had been dismissed in default on 29th July 2008. An affidavit in reply has been filed on behalf of the Defendant in which it has been stated that the Plaintiff has several suits pending and is aware of the practice and procedure of the Court. It has been submitted that the Plaintiff has no valid explanation for the delay of above four years. For the last several years, the dates of proceedings 3 before this Court and orders passed therein are available on the Internet and if the Plaintiff were to make enquiry, he would have easily learnt that an order of dismissal in default has been passed. -3. Ordinarily, the Court deals with applications for condonation of delay with equity and a fair degree of liberality. This is particularly so when in a given case, the Court is informed that the default is on the part of the Advocate concerned. In such a case, condonation of delay may be granted to ensure that the process of justice is not derailed. Having heard the Learned Advocates, however, there are sound reasons why the exercise of discretion is not warranted in this case. The provisions of Order 37 lay down a well structured and time bound schedule for the disposal of Summary Suits. The Legislature has advisedly made provisions of this nature with a view to facilitate expeditious disposal of claims which fall within the purview of Order 37. The Summons for Judgment was dismissed in default as far back as on 15th September 2004. The Notice of Motion has been taken out on 24th September 2008. The Plaintiff by all account appears from the record of the Court to be a seasoned litigant. The Learned Advocate appearing on behalf of the 4 Defendant has placed on record a print out from the official web site of this Court containing a list of cases instituted by the Plaintiff in 1999. The print out will show that the Plaintiff has instituted as many as seven suits in the year 1999, all of which were under Order 37 of the Code of Civil Procedure, 1908. Proceedings in five of the suits came to be disposed of in March 2000, April 2001 and June 2002. Evidently, therefore, the Plaintiff as a litigant, was pursuing remedies in several suits before this Court. It is not the case of the Plaintiff that he had lost sight of the suit, out of which the Summons for Judgment in this case arises. It is inconceivable that a litigant in the position of the Plaintiff, who had other suits of 1999, would rest content with the belief that the Summons for Judgment in the present suit was pending right until 2008. The explanation of the Plaintiff does not inspire confidence and is untrustworthy. The test which the Court must apply is of what a reasonable litigant would have done in the circumstances of the case. The Plaintiff has evidently no plausible explanation to offer. The explanation for the lapse of four years in taking out the Notice of Motion for setting aside the dismissal of the Summons for Judgment cannot be accepted. Moreover the consequence of the 5 dismissal of the Notice of Motion would not be to non suit the Plaintiff since the claim of the Plaintiff would have to be tried by the normal legal procedure. The suit is still pending. But having regard to the fact that the Summons for Judgment has been dismissed, the Defendant would be entitled to contest the suit on merits. The Notice of Motion shall accordingly stand dismissed. -4. The Written Statement shall be filed within a period of four weeks from today. The suit shall be placed on board on 1st September 2009 for framing issues. ......