1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3421 OF 2008 IN SUIT NO.859 OF 2006 Mr.Amey Deepak Sarnobat ..... Plaintiff V/s. Ms.Anita Madhukar Bhandare & Ors. .... Defendants Mr.G.N.Salunke, for the plaintiff. Mr.I.S.Thakur and Mr.C.S.Patil, for defendant Nos.1 to 3 in support of Notice of Motion. None for defendant Nos.4 & 5. CORAM: R.Y.GANOO , J. DATED: 03rd FEBRUARY, 2009. P.C. 1. The plaintiff has instituted this suit for specific performance in regard to the suit flat. According to the plaintiff, defendant Nos.1 to 3 had agreed to sale the suit flat. The plaintiff had taken out notice of motion No.992 of 2006 in this suit for diverse reliefs and that the said Notice of Motion has been decided by my learned Brother Judge who was then in- charge of the hearing of the said notice of motion. The present notice of motion has been taken out by defendant Nos.1 to 3 (hereinafter referred to as the “said defendants”), for setting aside the order dated 27-08-2008, passed in the Notice of Motion No.992 of 2006. The plaintiff has filed affidavit-in-reply. The said defendants have filed rejoinder. 2 2. I have heard the learned counsels on both the sides. The record indicates that certain ad-interim applications were made on behalf of the plaintiff for fixing the date of hearing of Notice of Motion No.992 of 2006. However, no specific date was fixed in the said motion. It has been a stand of the plaintiff that said motion No.992 of 2006 was on board and that is how the matter was called out on 27-08-2008 and attended to by the concerned learned Judge. With these introductory remarks, I proceed to deal with the present notice of motion. 3. In the course of arguments, the learned counsel appearing on behalf of the said defendants admitted that Vakalatnama on behalf of the said defendants that of his, was not filed in the office. It was also argued across the Bar that his Clerk was asked to file Vakalatnama. However, the Clerk had not filed the said Vakalatnama. 4. In the course of hearing of the arguments, the learned counsel for the defendants sought liberty to file his affidavit as well as affidavit of his Clerk with regard to what transpired about filing of the Vakalatnama. I declined to grant such a liberty as in my view, if such a permission would have been given, it would amount to bringing on record certain facts which are not whispered and as and by way of totally new facts and I felt it that such a permission could not be granted as it would cause prejudice to the case of the plaintiff. 3 5. The affidavit in support of the notice of motion, clearly indicates that in the past, the plaintiff's Advocate had given notice to the said defendants as regards his intention to move the Court for seeking specific orders as regards fixing of the date. It appears from the reading of the affidavit in support of the notice of motion that the said defendants felt that the Advocate for the plaintiff shall give notice to the said defendants as and when the matter is on board for final hearing. At this stage, it is required to be mentioned that once the service of the suit as well as service of the notice of motion is effected upon a particular party, it is not necessary for the plaintiff to inform the defendants from time to time as to when the matter will appear on board for a particular purpose, unless the plaintiff wants to move the Court for a specific purpose on a date otherwise than when the matter is on board. In view of the above, the so called obligation sought to be put upon the plaintiff that the plaintiff should have informed the said defendants about the hearing of the motion, cannot be accepted. To that extent, the contentions raised in the affidavit in support of the notice of motion are required to be rejected. 6. Though, it was submitted by the Advocate for the said defendants that the Vakalatnama was not filed on record, in the affidavit in support, some reference is made in Para No.14 so as to suggest that the Clerk of the Advocate could not check whether Vakalatnama filed by the 4 Advocate for the said defendants, is taken on record or not and the said defendants were under bonafide belief that the same has been taken on record. In my view, the question as to whether the said Vakalatnama has been taken on record or not, has to be inspected by the Clerk of the Advocate or the Advocate himself and certainly, the Advocate for the plaintiff or the plaintiff cannot be blamed. Here is the case where Vakalatnama was not filed at all and this is not a case where Vakalatnama was filed in the Office and then the name of the Advocate for the said defendants was not shown. Certainly, if Vakalatnama was not filed on behalf of the defendants in the office, the office or the plaintiff or the Advocate for the plaintiff, cannot be blamed for not showing the name of the Advocate for the said defendants on record. 7. In substance, the responsibility of non-filing Vakalatnama in the matter on behalf of the said defendants, solely rests on either the said defendants or their Advocate or the Clerk of the Advocate. For that, the plaintiff or the Advocate for the plaintiff should not be blamed. In fact, the perusal of the affidavit in support of the notice of motion clearly shows that a candid effort was not made to mention in the affidavit in support of the notice of motion that the Vakalatnama of the said defendants was not filed on record and some justification is sought to be made by averring Para Nos.14 and 15. 5 8. A specific stand has been taken by the plaintiff in Para No.13 that the motion was on board for four weeks continuously appearing from time to time for hearing hearing. However, on the fourth occasion, the same has been called out and heard. With reference to Para No.13 of the reply of the plaintiff, the said defendants have come out with a brief reply in their rejoinder, which is as follows : “I deny the plaintiff's contention therein. I say that the plaintiff ought to have intimated and seems to be deliberately avoided to intimate the defendants”. 9. In my view, this stand taken by the defendants in dealing with the Para No.13 of the reply, cannot be accepted. The stand of the defendants that the plaintiff ought to have informed the defendants or their Advocate about the adjourned date from time to time, simply cannot be accepted. 10. In so far as this case is concerned, if the Vakalatnama on behalf of the Advocate for the defendants was not filed on record, the plaintiff cannot be blamed and then it cannot be said that the notice of motion was heard ex-parte. The said defendants had enough opportunity to defend the notice of motion taken out by the plaintiff and attend to the said matter. Nothing is stated in the affidavit in support of the notice of motion as to in what way the said defendants made attempts to inquire with 6 the plaintiff or the Advocate for the plaintiff from time to time as regards the pendency of the notice of motion, keeping away the question of Vakalatnama of the Advocate for the defendants coming on record. 11. Taking the overall view of the matter, I am inclined to observe that the said defendants allowed the matter to be attended to in the manner in which it should not have been attended to. The said defendants remained absent when the matter was called out and that the learned Judge had no alternative but to hear and dispose of the matter and decide the motion. 12. In my view, no case is made out for restoration of the notice of motion No.992 of 2006 and to that extent, the notice of motion taken out by the said defendants is required to be dismissed. In the peculiar facts and circumstances of the case, I am not inclined to saddle the said defendants with the costs of the notice of motion. Hence, the order. : O R D E R : 1. The notice of motion is dismissed with no order as to costs. Mr.Patil i/by Mr.I.S.Thakur, was present when this order was dictated. He sought liberty of this Court to apply for modification of the order as regards the quantum of the royalty. In my view, no specific liberty 7 is required to be granted. It is for the defendant Nos.1 to 3 to attend to the matter in accordance with the provisions of law. Suit to come up on board as per the normal procedure. ( R.Y.GANOO, J. )