1 kambli/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1024 OF 2010 IN APPEAL NO.617 OF 2005 IN CHAMBER SUMMONS NO.205 OF 2005 IN SUIT NO.258 OF 1994 ... Virendra Shamjibhai Gala ...Appellant v/s. M/s.Tulsi Construction and Associates & ors. ...Respondents And Madhuben K. Paneri ...proposed Respondent ... Mr.Sanjay Jain with Ms.Gada i/b Harkchand & Co. for the Appellant. Mr.V.Y.Sanglikar i/b D.R.Shah for Respondents Nos.1 & 2. ... CORAM: D.K.Deshmukh & SMT.R.P.SondurBaldota,JJ DATED: 28th June, 2010 P.C.: 1. By this Notice of Motion the Appellant seeks an order for condonation of delay. The delay is of 178 days. The reason given in the affidavit filed in support of 2 the Notice of Motion for delay is that the Appellant was on pilgrimage from 31st August, 2009 to 4th September, 2009. Therefore, he could not attend the court on 4th September, 2009 when the Appeal was on board. According to him on 4th September, 2009 his advocate on record Mr.H.K.Gada had heart trouble. Therefore, he was taken to his Doctor and he was admitted in Hospital on 7th September, 2009 and that on 22nd September, 2009 he underwent bypass surgery. It is not disclosed in the affidavit as to when Mr.H.K.Gada resumed his practice. 2. This Notice of Motion was filed on 1st April, 2010. The Respondent filed affidavit- in-reply on 28th April, 2009 stating therein that the reason given in the affidavit filed in support of the Notice of Motion is absolutely false. That there were 3 negotiations going on between the parties in the month of July 2009 and that it was decided by both the parties that they would allow their respective appeals to be dismissed for default because there was no point in continuing that litigation. Accordingly both sides permitted their respective Appeals to be dismissed for default. Though the affidavit-in-reply was filed on 28th April, 2010, no rejoinder was filed. When the matter was on board before us today, a copy of the rejoinder was offered to the advocate appearing for the Respondent. He declined to accept the copy saying that he is going to object to the tendering of the rejoinder. What is sad is that the learned Counsel appearing for the Appellant after the matter was called out and we started hearing the matter did not even inform us that he had tried to serve a copy of the rejoinder on the 4 advocate for the Respondent and he has declined to accept the copy. When we put it to the advocate as to why he has not filed rejoinder to what is said in paragraph 7 in the affidavit-in reply. At that time he tried to tender his rejoinder. Perusal of the rejoinder shows that there is mere denial of the allegation made in the paragraph 7 of the affidavit-in reply. The Appellant has not produced any document to show that on 4th September, 2009 he could not have come to the court because he was on pilgrimage. 3. If the material on record is perused, it becomes clear that though the Appellant says that the matter came to be dismissed for default on 4th September, 2009 because he was on pilgrimage and his advocate Mr.Gada had heart trouble on 4th September, 2009, there is no document placed on record in support of 5 any of these allegations. No letter from Advocate Mr.Gada or any affidavit from him saying as to why he did not attend the court on 4th September, 2009 is produced on record. Even the allegation about Mr.Gada s suffering heart trouble is vague. What is stated is thus: I say that on 4 th Septemebr, 2009 my advocate on record Mr.H.K.Gada had got heart trouble after he reached office, when Mr.Hemant Naik, court clerk of my advocate on record took Mr.Gada to his cardiologist doctor at matunga. My Advocate on record Mr.Gada on 7th September, 2009 was admitted to Kikabai Hospital at Sion for Angiography and thereafter on 22nd September, 2009 had bypass heart Surgery at Breach Candy Hospital. 4. It was argued before us that on 4th September, 2009 Mr.H.K.Gada suffered heart attack. If he suffered heart attack on 4th September, 2009, there is no explanation why he was admitted in Hospital on 7th September, 2009. The time of the day on 4th September, 6 2009 when Mr.Gada got heart trouble is also not mentioned. It is deliberately kept vague. Even after the reply was filed and the Respondent pointed out that the allegation is false and that the Appellant was in court on 4-9-2009 and he allowed deliberately his appeal to be dismissed for default and therefore the Respondent also permitted his Appeal to be dismissed for default, even in the belated rejoinder there is no document produced either to show that on 4th September, 2009 Mr.Gada did not attend the court or that the Appellant was not in town. We find that the reason given by the Appellant is false. It appears that he was present in court on 4th September, 2009 and he deliberately permitted his Appeal to be dismissed for default pursuant to the understanding with the Respondent. So far as aspect of delay is concerned, as observed above, even assuming 7 that till 22nd September, 2009 the advocate Mr.Gada had good reason for not making an application for restoration of Appeal, it is no where disclosed either in the affidavit filed in support or in the rejoinder as to when did Mr.Gada again start practice. Orally we were informed at the hearing that he started practice in December 2009. All the information about the pending and disposal of the matters in this court are admittedly available on the internet. There is no explanation why after resuming practice in December, 2009 Mr.Gada did not make an attempt to find out whether his appeal was pending or dismissed. The application is filed only in April, 2010. Thus, so far as period from December, 2009 to April, 2010 is concerned, there is no explanation. But basically we are not inclined to entertain the Notice of Motion because of the conduct 8 of the Appellant of making deliberately false, vague and misleading statements. The conduct in relation to rejoinder, which we have noted above, in our opinion is sad. To say the least, deliberately an attempt was made to take the Respondent by surprise. 5. Taking overall view of the matter, therefore, in our opinion, entertaining such Notice of Motion will defeat the ends of justice. The Motion is, therefore, disposed of. (D.K.Deshmukh, J.) (R.P.SondurBaldota J.)