- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 3991 OF 2008 IN SUIT No. 2855 OF 2008 Afzal Khan & Anr. ... Plaintiffs Vs. Mehboob Ayub Khan & Ors. ... Defendants *** None for the Plaintiff. Mr. Rakesh Misar i/b Navdeep Vora & Associates, for Defendant Nos. 1 to 3. Ms. K. R. Daviawale i/b Mulla & Mulla for defendant Nos. 7, 8 & 9. Mr. H. T. Attar i/b Hooseni Doctor & Co. for defendant No. 10. *** CORAM : V. M. KANADE, J. DATE : AUGUST 24, 2009. PC :- 1. Heard the learned counsel appearing on behalf of defendant No. 10. None appears on behalf of the plaintiff and so also on behalf of other defendants. This Notice of Motion is taken out by defendant No. 10 seeking following reliefs - “(a) That the defendant No. 10 be struck out as party defendant in the above suit and the reference to defendant No. 10 be - 2 - struck out from the plaint and proceedings in the Notice of Motion No. 3384 of 2008 taken out on behalf of the plaintiffs in the above suit. (b) That the cost of the Notice of Motion be provided for; (c) For such and other reliefs as the nature and circumstances of the case may require.” 2. The learned counsel appearing for defendant No.10 submitted that no relief is claimed against defendant No. 10 in this suit. It is submitted that the said defendant is not a necessary party to the above suit and the suit discloses no cause of action against the defendant No. 10. None appears on behalf of plaintiff and no reply has been filed to the Notice of Motion and the affidavit in support thereof though served to the plaintiff on 21st November 2008. Under these circumstances, the averments made in affidavit in support are uncontraverted. The other defendants have no objection if name of defendant No. 10 is struck out from the plaint and the Notice of Motion. Notice of Motion is accordingly allowed in terms of prayer Clause (a). The plaintiff to carry out necessary amendment in the suit as well as in the Notice of Motion within four weeks. The Notice of Motion is accordingly disposed of in above terms. Sd/- [ V. M. KANADE, J.]