1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2726 OF 2009 IN SUIT NO.4347 OF 1996 Pandurang Kamlakar Patil & Ors. .. Plaintiffs Versus M/s.Soham Builders & Ors. .. Defendants Mr.Ashok Verma i/b. M.B.Jagad for plaintiffs Mr.brijesh Upadhyay i/b. Purnanand & Co. for defendant. CORAM : S.C.DHARMADHIKARI, J. DATE : 4th September 2009. P.C.: 1] This motion is moved by defendant No.74 requesting that he may be permitted to defend the suit and his written statement duly affirmed on 28th July 2009 be taken on record by condoning the delay of seven years. 2] Admittedly Order VIII Rule 1 of Code of Civil Procedure as amended in 2002 is inapplicable to the suits which are filed on the Original Side of this Court. Yet, it is not as if the defendants can defend 2 the claim as of right. The explanation offered for the delay is that this defendant was served with the writ of summons in the year 2002 but had no proper legal advice and, therefore, he could not file written statement earlier. Now, the written statement is duly affirmed and a copy thereof is served on the other side. 3] The plaintiff has filed an affidavit in reply and pointed out that several opportunities were given to this defendant to contest the claim. The matter appeared before Prothonotary & Senior Master twice but no steps have been taken despite orders being passed. In these circumstances, there is no explanation for the delay and the motion be dismissed. 4] Having perused the affidavit in support and reply with the assistance of learned Advocates for parties, I am of the opinion that in the facts peculiar to this case and liberal principles being consistently applied, the relief prayed for deserves to be granted but by putting the defendant on terms. The valuable opportunity to defend the suit should not be denied unless conduct of the defendant is such as could be termed 3 as utter negligence, totally callous or complete inaction. In the present case, the conduct does not appear to be of this degree. Therefore, interest of justice would be sub-served if the motion is made absolute in terms of prayer clauses (a) and (b) but directing the defendant concerned to pay costs to plaintiff’s Advocate quantified at Rs.3,500/-. Motion is disposed of accordingly. 5] If costs are paid within the time stipulated, the written statement be taken on file and thereafter the matter to appear under caption “for framing issues”. In default, motion stands dismissed and, thereafter, the plaintiff can proceed against the defendant concerned and apply for ex parte decree against him. (S.C.DHARMADHIKARI, J)