1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3196 OF 2008 IN SUIT NO. 1759 OF 1990 The Board of Trustees of the Port of Bombay .. Plaintiff V/s Burdwan Textiles & Anr. .. Defendants Mr. U.J. Makhija with Mr. Parag Khandar i/b Mulla & Mulla Craigie Blunt & Caroe for the plaintiff. Ms. Subra Karmarkar with Mr. Xavier Thomas i/b Mr. K.R. Shriram for defendant no.2. CORAM : D.G. KARNIK, J. DATE : 20th APRIL 2010 P.C. : 1. Heard. 2. By this motion, the defendant no.2 prays for setting aside of an exparte decree passed by this Court on 22nd March 1996. 3. Perused the order dated 22nd March 1996 passed by this Court by which an exparte decree was passed. The order says that as the written statement has not been filed by the defendant no.2, the suit was decreed under Order VIII Rule 2 10 read with Rule 5(2) of the Code of Civil procedure. 4. Learned counsel for the defendant no.2 submits that the order was passed on the erroneous assumption that the written statement was not filed by the defendant no.2. In fact, the defendant no.2 had filed the written statement on 4th August 1995. Perusal of the record discloses that the written statement had been filed by the defendant no.2 on 4th August 1995. However, the said fact was not brought to the notice of this Court when the exparte decree was passed. The record also discloses that on 31st August 1995, the Prothonotary & Senior Master had passed an order transferring the suit to the list of long causes qua the defendant no.1. That fact was also not brought to the notice of the Court. In this view of the matter, the exparte decree needs to be set aside. 5. For these reasons, the exparte decree passed vide order dated 22nd March 1996 in Suit No. 1759 of 1990 is set aside and the suit is restored to file. The notice of motion is made absolute in terms of prayer clause (a). List the suit on board on 22nd June 2010 for framing of issues. (D.G. KARNIK, J.)