1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.68 OF 2009 IN SUIT NO.1994 OF 1993 M/s.United Pulp & Paper Mills Limited Plaintiff versus M/s.Jaykal Mercantile Agencies Defendants None for the plaintiff. Mr.Vishal Talsania i/by Kanga & Co. for defendants. CORAM : S.J.KATHAWALLA, J. DATE : 9th February 2011 PC : 1. By this Notice of Motion the defendants seek setting aside of the order dated 23rd July 1998 passed by this Court (Coram : D.K.Deshmukh, J.) which reads as follows :- "Suit transferred to list of Long Causes. Written Statement to be filed within 4 weeks from today. Usual order for discovery and inspection. Failing which matter to be placed on Board for ex-parte decree after 4 weeks." 2. From the Roznama it appears that the advocate for the defendants had appeared before the Prothonotary & Senior Master on 5th February 1998 and had applied for eight weeks time to file written statement of the defendants. On 2nd April 1998 when the matter once again appeared before the Prothonotary & Senior Master, no written statement was filed by the defendants and once again four weeks time was sought which was granted. On 30th April 1998 when the matter was called out before the Prothonotary & Senior Master, the defendants and their advocates were 2 absent. Thereafter the matter appeared before this Court on 23rd July 1998 when the Court passed the above order allowing the defendants to file their written statement within four weeks. It is pertinent to note that the advocate for the defendant was present before the Court when the conditional order was passed on 23rd July 1998. Despite the said order dated 23rd July 1998, the defendants for ten long years have failed to file their written statement and/or to move this Court for setting aside the said order dated 23rd July 1998. 3. In the affidavit-in-support of the Notice of Motion the only reason given for not complying with the order dated 23rd July 1998 thereby not filing the written statement for ten long years is that the defendants' advocates had forwarded the draft written statement to the defendants on 4th September 1999 for approval, but due to inadvertence, the matter was left unattended and the written statement remained to be filed. 4. The defendants were well aware of the order passed on 23rd July 1998 because they were represented on that day by their Advocates. Therefore, despite having knowledge of the order dated 23rd July 1998 the submission that the defendants left the matter unattended "due to inadvertence" for ten long years cannot be accepted more so when the defendants all through out were also represented by a firm of solicitors. This only goes to show that the litigants like the present defendants have no regards for the orders/directions of the Court and they take the Court for granted and carry an impression that they can commit flagrant breach of the orders/directions passed by the Court and can later get away with their contemptuous conduct. As stated above, the defendants had repeatedly taken time to file their written statement even from the Prothonotary and Senior Master, but have thereafter not complied with a single order so passed. If the defendants without bona fide and sufficient reasons are allowed to file their written statement after ten long years, the Court would be sending out wrong signals to the litigants at large that despite flagrant disobedience of the Court's orders/directions they can 3 ultimately get away with the same. If such acts are condoned, the Court will have to blame itself for the brazen disregard of the Court's orders by the litigants as well as the mounting arrears of litigation in Courts. 5. In the above circumstances, I am of the view that no case has been made out by the defendants for setting aside the order dated 23rd July 1998 passed by this Court. The defendants have contended before this Court that the plaintiff was not present when the order dated 23rd July 1998 was passed by this Court and that an ex-parte decree has yet not been passed against them. Both these contentions lack merit. Needless to add that if the plaintiff remains absent when the suit is taken up for ex- parte decree, the same would be dismissed for want of prosecution. The defendants can thus derive no benefit from the plaintiffs absence. The fact that the suit is not listed for ex-parte decree cannot justify the defendants above conduct of disregarding the Court's specific directions to file the written statement as directed, for ten long years without sufficient cause. 6. The Notice of Motion is therefore dismissed. (S.J.KATHAWALLA, J.)