: 1 : nms-1354-10=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1354 OF 2010 IN SUIT NO. 626 OF 2001 Bhanupratap Singh & Ors. .. Plaintiffs v/s. Dharamshi S. Patel & Ors. .. Defendants ......... Mr. A. G. Damle for the plaintiffs Mr. Shaikh Yusuf Ali i/by Akshay Vani for defendant no.1 ......... CORAM : R.Y.GANOO, J. DATE : 30th SEPTEMBER, 2010 P.C. : 1. The writ of summons was served on defendant no.1 on 27th December, 2002. Thereafter, he has not filed written statement and, therefore, the Prothonotary and Senior Master passed order on 19th September, 2006 that suit should proceed ex-parte without written statement against defendant no.1. Defendant no.1 has filed notice of motion for condonation of delay in taking out this notice of motion and for setting aside order dated 19th September, 2006. : 2 : nms-1354-10=.sxw 2. The plaintiffs have not filed any affidavit-in-reply however, learned Counsel Mr. Damle appearing on behalf of the plaintiffs opposed the motion on the strength of the relevant dates and on the basis of averments in the affidavit in support of the notice of motion. 3. The defendants received the writ of summons on 27th December, 2002. The Notice of Motion No.623 of 2001 was taken out in the present suit and Court was moved for ad-interim reliefs and on 15th March, 2001, one advocate appeared on behalf of defendant no.1 and that is how defendant no.1 participated in the proceedings. Thereafter, defendant no.1 did not file any written statement and it is only when the order was passed by the Prothonotary and Senior Master that suit should proceed ex-parte on 19th September, 2006, defendant no.1 have taken out this notice of motion in April, 2010. The reasons for not filing written statement within the stipulated time, other factual backgrounds are set out in paragraphs 8 and 9 of the affidavit in support. A reading of the said paragraphs would clearly go to show that the contents thereof are absolutely vague and do not mention relevant dates to justify non-filing of written statement till 19th September, 2006. The said affidavit in support also does not make out a case for condonation of delay in taking out present notice of motion. Defendant no.1 has put : 3 : nms-1354-10=.sxw his thrust by leveling allegations against defendant nos. 2 and 3. Defendant no.1 claims that defendant no.2 and 3 suggested to defendant no.1 that they would take care of litigation and that defendant no.1 should not worry about the matter. Defendant no.1 claims that due to these representation he did not participate in the suit. Defendant no.1 further claims that he came to know that plaintiffs and defendant nos. 2 and 3 have come together and colluded against defendant no.1 and obtained a decree by way of consent decree. Even, defendant no.1 has not given specific dates as to when he came to know about the conduct of defendant nos. 2 and 3 in joining hands to the plaintiffs. It is just difficult to accept the stand of defendant no.1 that he relied upon the words of defendant nos. 2 and 3. In my view, record clearly indicates that defendant no.1 neglected to attend to the matter for the reasons best known to him. Though he was served with the written statement on 27th December, 2002, he thought it fit to file Vakalatnama through an advocate only on 12th April, 2010 and that too while taking out the present notice of motion. This would clearly show that defendant no.1 was indolent in attending the matter. It is to be noted that the consent decree has been passed on 6th May, 2010 between the plaintiffs and defendant nos. 2 and 3. It is difficult to believe that defendant no.1 did not know anything about it. In my view, defendant no.1 has not made out a case to condone the delay in : 4 : nms-1354-10=.sxw filing the notice of motion. He has not come out with sufficient material to show that the order passed by the Prothonotary and Senior Master on 19th September, 2006 deserves to be set aside. The negligent conduct on the part of defendant no.1 is apparent and there is no question of exercising discretion in favour of defendant no.1 in the matter of granting this notice of motion. 4. For the reasons mentioned aforesaid, I hold that defendant no.1 cannot get reliefs sought in the motion and the motion is required to be dismissed. Hence, following order is passed to dispose of the notice of motion. ORDER (i) Notice of Motion is dismissed. In the peculiar facts, there shall be no order as to costs. (R.Y.GANOO, J.)