:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 1020 OF 2008 OF MOTION NO. 1020 OF 2008 OF MOTION NO. 1020 OF 2008 IN IN IN SUIT SUIT SUIT NO. 1943 OF NO. 1943 OF NO. 1943 OF 1998 1998 1998 Ramanlal P. Shah. ... Plaintiff. V/s. M/s. Suburban Const. Co. and Ors. ... Defendants. Mr. Mehul Shah i/b. Bharat Joshi for the Plaintiff. Mr. Tanvir Shaikh for Defendant No.1. Mr. V.B. Dhingreja for Defendant No.5. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 29TH 29TH 29TH JANUARY 2009. JANUARY 2009. JANUARY 2009. P.C. P.C. P.C. : : : . This is a Notice of Motion to set aside an order directing that the Suit to proceed as Ex-parte against Defendant Nos.1 and 2. 2. It is stated that Defendant No.2 has expired. The present Defendant Nos. 2A to 2D are his heirs and legal representatives. He was partner of Defendant No.1 The heirs came to know about the order of this Court, that the Suit should proceed ex-parte, only when Chamber Summons No.1287 of 2007 was served on them. In paragraphs 5 to 7 of the affidavit in support of the Notice of Motion, the heirs have sought to explain the delay in filing their written statement. 3. The Original Plaintiff is served with this Motion :2: and it is argued that there is a delay of 1538 days which is not properly explained. On the other hand, the deceased Defendant No.2 was desirous of settling the matter. He never intended to contest the claim and that is how he did not file the written statement during his lifetime. In these circumstances, the Motion should be dismissed. 4. After perusing the Notice of Motion and the affidavit in support and reply, I am of the view that Defendant Nos.2A to 2D deserve to be given opportunity to defend the Suit. They intend to represent the Firm as well. Therefore, they, on their behalf so also on behalf of Defendant No.1 ought to be permitted to file their written statement and defend the claim of the Plaintiff on merits. Such an opportunity is granted considering the peculiar facts of this case but on the condition that Defendant Nos.1 and 2A to 2D pay to the Plaintiff costs quantified at Rs.5,000/- within a period of two weeks from today. If costs are paid and proof is produced, the written statement shall be taken on record. Needless to state that in default, the Defendants will not have benefit of this order and the Suit then be placed for ex-parte decree. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)