1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3927 OF 2009 IN SUIT NO. 240 OF 2007 Mr.Sagar P. Patel & Anr. ...Plaintiffs vs Ms.Abigael Jacob Pezarkar & Anr. ...Defendants AND NOTICE OF MOTION NO. 3928 OF 2009 IN SUIT NO. 240 OF 2007 Mr.Sagar P. Patel & Anr. ...Plaintiffs vs Ms.Abigael Jacob Pezarkar & Anr. ...Defendants Appearance in above matters :- Mr.D.H. Mehta with Mr.D.D. Mehta i/b. M/s.D.M. Legal Associates for the Plaintiffs. Mr.S.S. Sharma for Defendant No.1. Mr.A. Kamath i/b. Mr.S.A. Mailagir for Defendant No. 2. CORAM : V.M. KANADE, J. DATED : JANUARY 22, 2010 2 P.C. :- 1 Both these Notice of Motions are filed by defendant Nos.1 and 2 for recalling the order passed by the Prothonotary and Senior Master dated 20th August, 2008 and condoning the delay of 430 days and permitting the defendants to file written statements in the above suits. 2 Counsel appearing on behalf of Defendant No.1 in Notice of Motion No.3928/2009 submitted that defendant no.1 who is a old lady is 82 years age and is suffering from various ailments and has annexed the copy of the Doctor certificate wherein it has been mentioned by the Doctor that defendant no.1 is suffering from chronic backache. Defendant No.1 in her affidavit in support has stated that though diligent steps were by her, she could not contact her Advocate on account of her illness and since the defendant s Advocate, though he was entrusted to file written statement, did not remain present 3 before the Prothonotary & Senior Master personally or through representative, therefore, she had to engage another Advocate. 3 Counsel for defendant No.2 submitted that the earlier Advocate was not diligent in filing the written statement. He has invited my attention to the additional affidavit in rejoinder by the defendant no.2. 4 Counsel for the plaintiffs, however, vehemently urged that a false reply had been filed by the defendants. He submitted that in the first affidavit in support, no reasons have been given by the defendants no.1 and 2 for the delay caused in filing the written statements. He submitted that the defendants should not be permitted to file written statements after the period prescribed by the Civil Procedure Code as a matter of course. He submitted that as an after-thought, additional affidavit in reply has been filed by defendant nos.1 and 2. He 4 submitted that defendant no.2 in his first affidavit has merely stated that due to hectic pace of life, he could not file the written statement. He submitted that the said explanation offered by the defendant was frivolous. He relied on the judgment of the Apex Court in the case of M/s.Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd. & Ors. (AIR 2007 SC 1574). He submitted that the Apex Court has stated that the parameters for extending the time granted by Order VIII Rule 1 have been delineated by the Apex Court in several cases. He submitted that time should not be granted as a matter of routine and merely on asking after the expiry of 90 days, the extension can be only be granted by way of exception and for reasons assigned by the defendants and recorded in writing by the court itself. 5 In my view, the defendants have given explanation in their additional affidavits for the delay caused in filing the written statements. Defendant no.1 is a old lady of 82 years age having 5 a chronic backache. There is no reason why her statement that she was diligent and tried to contact her earlier Advocate and had given him instructions to file her written statement and that he had failed to file written statement and therefore, she was compelled to engage a new Advocate, should not accepted. Similarly, defendant no.2 also has stated that his Advocate was not diligent. It is well settled position in law that normally a litigant should not be penalised for the default by his Advocate. No prejudice would be caused to the plaintiffs if the defendants are directed to file written statements. Suit is of the year 2007. There cannot be any dispute regarding the ratio of the judgment on which reliance is placed by the plaintiffs counsel. However, in my view, in the facts and circumstances of the case, the ratio of the judgment would not apply to this case. 6 The delay, therefore, caused in filing the written statements is condoned. The defendants shall 6 file the written statements within four weeks. Both the defendants, however, pay the costs which are quantified at Rs.500/- each. 7 Notice of Motions are disposed of. 8 Suit adjourned for four weeks. (V.M. KANADE, J.)