1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 96 OF 2010 IN NOTICE OF MOTION NO. 38 OF 2008 IN SUIT NO. 2341 OF 1986 M.K.Associates, Bombay ..Appellant Vs. Dr. Aspi Framroze Golwalla and Ors. ..Respondents .... Mr. Dhawal D.Mehta along with Maya Sarkar i/b Madhukar Munim and Co. for Appellant Mr. Gaurav Joshi along with Shri.Agnel Carneiro i/b Mulla and Mulla for Respondent No.2 .... CORAM : B.H.MARLAPALLE AND SMT.V.K.TAHILRAMANI, JJ. DATE : 3rd MARCH, 2010 P.C.: 1 Heard Mr. Mehta, the learned counsel for the Appellant- original Defendant No.3. 2 2 In Small Cause Suit No. 2341 of 1986 the Appellant did not file a written statement till February, 2000 and therefore, on 2nd March, 2000, the learned trial Judge passed the following order: “No Written Statement is filed by the Defendant. Suit is of 1986. Suit to proceed in default of written statement. Plaintiffs are directed to file affidavit in support of the suit claim within four weeks. ” 3 It appears that eight years later, Notice of Motion No. 38 of 2008 came to be taken out by the Appellant to set aside the order dated 2nd March, 2000, to condone the delay caused in filing the Notice of Motion and to take the Written Statement on record. The learned trial Judge was pleased to dismiss the Motion by the impugned order dated 19th November, 2008. The learned Judge held that there was no explanation for taking out the Notice of Motion after a period of seven years and ten months and that the circumstances set out to condone the delay, did not find favour with the learned trial Judge. 4 When this Appeal came up for hearing on admission, we raised the issue of maintainability of this Appeal and the learned counsel 3 for the Appellant relied upon the decision of this Court (Division Bench) in the case of Saga Department Stores Ltd. Vs. Falak Home Developers Pvt. Ltd., [2008 (6) B.C.R. 59]. He has also relied upon the Rule 142 of the Bombay High Court (O.S.) Rules, 1980, in support of his contentions that the appeal is maintainable. 5 The Motion taken out by the Appellant and which came to be rejected by the impugned order, was not filed under Order VIII Rule 1 or under Order VIII Rule 10 of C.P.C. and it could not be said to be an order for interim relief. In our opinion, the impugned order cannot be termed as judgment or order so as to entertain an appeal under the Letters Patent by following the decision of the Supreme Court in the case of Shah Babulal Khimji Vs. Jayaben D. Kania and another; [AIR 1981 S.C.1786]. 6 We, therefore, hold that this intra Court appeal is not maintainable and the same is dismissed as such. [ SMT.V.K.TAHILRAMANI, J.] [ B.H.MARLAPALLE, J. ]