Amrutlal Bhikabhai Patel vs. Jayant Tapulal Parekh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL JURISDICTION

NOTICE OF MOTION NO. 4768 OF 2007 IN SUIT NO. 2991 OF 1996

Amrutlal Bhikabhai Patel. .... Plaintiff.

V/s.

Jayant Tapulal Parekh & Ors. .... Defendants.

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Mr. Hiren Mehta i/b. Akshay Vani for the Plaintiff. Mr. B.A. Vora for Defendants 1, 2A to 2C.

CORAM : DR. D.Y. CHANDRACHUD, J.

21ST JANUARY 2008.

P.C. :

An ex-parte decree was passed on 20 th July 2007. It has been stated in paragraph 3 of the order that the Defendants have neither entered appearance despite service of the writ of summons nor any defence has been filed. In the affidavit in support, in paragraph 4, it has been stated that the First Defendant had appointed an Advocate, initially who had filed his Vakalatnama on 3 rd October 1996 and after obtaining the No Objection of the earlier Advocate, another Advocate was engaged, who in turn had filed his Vakalatnama on 19 th August 1999. The Second Defendant expired on 29 th November 2001. In paragraph 5, it has been stated that the First Defendant has suffered from a heart ailment and from paralysis. A file containing the medical papers has also been produced.

Having regard to the averments made in support of the application, particularly in paragraphs 4 and 5 of the affidavit in support, I am of the view that liberty should be granted to the Defendants to contest the suit by recalling the Judgment and Order dated 20 th July 2007. This however should be subject to the payment of costs. The delay has been sufficiently explained in paragraph 7 of the affidavit in support.

The Notice of Motion is accordingly made absolute in terms of prayer clauses (a) and (f), subject to the payment of costs quantified at

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Rs.10,000/-. Payment of costs shall be a condition precedent and payment shall be effected within a period of two weeks from today. The suit shall be placed on board for directions after two weeks.