1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7691 OF 2011 Dinu Pascol Borne ...Petitioner Versus Nicholal D’Souza & Ors. ...Respondents Mrs.N.V.Sanglikar for the Petitioner Mr.Owen J. Menezes with R.S.Tripathi for the Respondent Nos.1 and 2 CORAM:- R.Y.GANOO, J. DATED:- 29th SEPTEMBER, 2011. P.C. 1. The petitioner filed Notice of Motion No.150 of 2011 praying that the order dated 6.10.2010 passed by the learned Judge of the City Civil Court in Short Cause Suit No.3566 of 2005 be set aside. Heard learned Advocates on both sides. Learned Advocate Mrs. Sanglikar admitted that the writ of summons was served on 7.6.2006 and “no written statement” order was passed on 20.2.2007. 2. By this motion, the petitioner wanted that the written statement 2 should be be taken on record. In such a case it was necessary for the petitioner to challenge the order dated 20.2.2007. The petitioner has challenged order dated 6.10.2010. It does not relate to the stage of filing written statement. The order dated 6.10.2010 reads as under: “None for the plaintiff. Advocate Ms. D’Mello holding for D’Mello for the defendants present. Plaintiff has not adduced his further evidence. His evidence is closed. Adjourned for arguments to 16.11.2010” A perusal of above order would go to show that the defendant i.e. present petitioner had no reason to challenge this order. This will go to show that in the first place the petitioner moved the learned Judge for having written statement on record by challenging the order which could not have been challenged at all. This will clearly go to show that the petitioner instituted the wrong proceeding. Even if the word of the learned Advocate for the petitioner is accepted that there was a mistake on the part of the petitioner in mentioning the date of the order, still on merits the petitioner does not have a good case. The writ of summons was served on 7.6.2006. Hence the petitioner should have filed the written statement atleast by 7.9.2006. The petitioner did not file the written statement and has now applied for 3 condonation of the delay and the only reason mentioned in the affidavit in support of the notice of motion is that his mother is suffering from heart problem for a long time and that is how he could not attend to the suit. Even if it is held that the petitioners mother is unwell, he could have gone to his Advocate atleast once or twice to give instructions and attend to the matter. The explanation given is not proper. The learned Judge has rightly arrived at the conclusion in terms of order dated 29.7.2011 that the reasons for condonation of delay are not proper and cannot be treated as good ground to grant relief to the petitioner. I do not wish to take a different view. Hence petition is dismissed at the stage of admission. There shall be no order as to costs. (R.Y.GANOO, J.)