- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.1123 OF 2008 OF MOTION NO.1123 OF 2008 OF MOTION NO.1123 OF 2008 IN IN IN SUIT SUIT SUIT NO.1149 OF 1975 NO.1149 OF 1975 NO.1149 OF 1975 Suresh L. Raheja ...Plaintiff vs. Manocher Ebrahim Shiazi and others ...Defendants Mr.Chirag Balsara a/w Ms Sanidha Vedpathak i/b Manesha & Sethna for the plaintiffs Mr.Sandeep Parekh i/b Bilawala & Co. for the defendants CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : NOVEMBER 26,2008 : NOVEMBER 26,2008 : NOVEMBER 26,2008 P.C.: P.C.: P.C.: 1. Heard the learned counsel for 1st,3rd and 4th defendants in support of the notice of motion. I have heard the learned counsel for the plaintiffs. 2. The prayer in the notice of motion is for taking written statements of the 1st, 2nd and 3rd as well as of the 4th defendants on record. Another prayer is for condonation of delay in filing the written statements. The case made out in affidavit in support is that the written statement of the 1st defendant was affirmed on 20th September 1984, written statement of 2nd and 3rd defendant was affirmed on 15th March 1989 and written statement of the 4th defendant was affirmed on 28th February 1989. Reliance has been placed on the consent praecipe forwarded by the Advocates for the concerned - 2 - defendants at the relevant time. 3. The learned counsel for the plaintiffs opposes the prayer by pointing out that the delay is of 7000 days and the permission cannot be granted to file the written statements as the suit is of the year 1975. 4. In view of the averments made in paragraphs 2 and 3 of the affidavit in support and xerox copies of the aforesaid written statements, it appears that the written statement of the 1st defendant was affirmed on 20th September 1984. Similarly, the written statement of the 2nd and 3rd defendants appears to have been affirmed on 15th March 1989 and the written statement of the 4th defendant appears to have been affirmed on 28th February 1989. Therefore, it cannot be said that there is a default on the part of the concerned litigants. Due to inadvertence on the part of the concerned Advocates, written statements could not be filed. It is true that the suit of the year 1975. However, since the said concerned defendants have taken timely steps to get the written statements affirmed, the permission cannot be denied to the defendants to file the written statement. But the plaintiff will have to be compensated by ordering payment of costs. The total amount of costs payable by the 1st, 3rd and 4th defendants will be Rs.15,000/-. - 3 - 4. Accordingly, notice of motion is made absolute in terms of prayer clauses (a) and (b) subject to condition of the 1st, 3rd and 4th defendants together paying costs of Rs.15,000/- to the plaintiffs on or before 10th December 2008. Payment of costs will be a condition precedent. 5. The suit shall be set down on board on 16th December 2008 for settlement of issues. JUDGE JUDGE JUDGE