spb/- 1 nms4171-06.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4171 OF 2006 IN SUIT NO. 3201 OF 1993 M/s. Neelesh Industrial Agency ... Plaintiff. V/s. M/s. Doshi Brothers ... Defendant. ----- Mr. D.N.Hungund for the Plaintiff. Ms. Usha Rathi i/by M/s. Mayur Narendra & Co. for the Defendant. ----- CORAM : D. G. KARNIK, J. DATE : 09th AUGUST, 2011. P.C. : 1 This Motion is taken out by the original defendant for setting aside ex-parte decree passed on 9th November, 2006 in suit No. 3201 of 1993. Learned counsel for the defendant submitted that the suit was posted for hearing on 9th November,2006 and the defendant was present in the court. However, as their Advocate was busy in some other court, the suit proceeded ex-parte. He, therefore, prays that the suit may be restored to file as the defendant cannot be punished for the absence of their counsel. 2 By filing an affidavit in reply the plaintiff has denied the contents spb/- 2 nms4171-06.sxw of the affidavit of the defendant. In paragraph 6 of the affidavit in reply, the plaintiff has specifically denied the averments made in paragraph 3 to 7 of the affidavit of the defendant. Thus the averment that the defendant was present in the court is specifically denied. No evidence has been produced by the defendant to show that he was present in the court on 9th November, 2006 when the suit was heard ex-parte. The defendant has stated in the affidavit in support of the Motion that the Advocate’s clerk told him that the exparte decree was passed. If the defendant was really present in the court, he would have come to know himself that the decree was passed ex-parte and would not have been required to be told by the Advocate’s clerk. This also indicates that the defendant was not present in the court as alleged. If the defendant was present on the date of hearing, the clerk of the Advocate would have filed his affidavit that the defendant was present in the court. That has not been done. 3 The learned counsel for the plaintiff invited my attention to paragraph 3 of the affidavit in reply to show that the suit was filed in the year 1993 and that the defendant had not filed any written statement for 13 years. The court, therefore, had directed that the suit would proceed ex-parte without written statement. Thereafter, the time was given by the spb/- 3 nms4171-06.sxw court to the plaintiff to file affidavit of evidence, list of documents and affidavit of documents, which was done. Copies of the same were served on the defendant's Advocate. Since there was no written statement filed by the defendant in the suit, the suit in any event was to proceed exparte. The defendant failed to cross-examine the plaintiff when the suit was called for hearing and therefore, the court proceeded to pass ex-parte decree. In the facts and circumstances of the case, the defendant has failed to prove that there was a sufficient cause for their absence on 9th November, 2006 when the suit was heard ex-parte. 4 Notice of Motion is dismissed. [D.G. KARNIK, J.]