BITESH HANUMANTRAO SAGAR Vs. VIRGINA ANTHONY MISQUITTA

JUDGEMENT

(1.) ADMITTED . Counsel appearing for Respondent Nos. 1 to 4, 8 to 28, 30, 32 to 53 waives service. Appellants have already deleted Respondent Nos. 5(a) to 5(c), 6(A) to 6(F), 7, 29, 31 and 54 to 65 from the title of the Appeal Memo. By consent, heard finally.

(2.) THIS is an Appeal against the dismissal of Notice of Motion taken out by the Appellants [Original Defendant Nos. 1(A), 1(B) and (1F)] which was for condonation of delay in taking out Notice of Motion and for taking the Written Statements on their behalf on the record of the suit and for allowing the Appellants to file their Written Statement in Suit NO. 1570 of 1983 which has resulted in the suit being proceeded without Written Statement against the Appellants [Appellants - Defendant Nos. 1(A), 1(B) and (1F)]. Parties described in cause title of the plaint are described in this appeal in the later part of this Judgment.

(3.) DEFENDANT Nos.1(A), 1(B) and (1F) took out Notice of Motion bearing No. 978 of 2011 on 28th March, 2011 praying for condonation of delay if any in taking out Notice of Motion and for taking the Written Statement on their behalf on the record of the suit. Plaintiffs filed an affidavit-in-reply to the said Notice of Motion opposing the reliefs as prayed by the Defendant Nos. 1(A), 1(B) and (1F). The Learned Single Judge by an Order dated 21st April, 2011 dismissed the said Notice of Motion holding that initially the allegation of the Defendant Nos. 4 to 49 was that the Plaintiff and Defendant No.1 were in collusion. It was observed that the position seems to have changed now and that may be the reason why the Applicants who have been brought on record in the year 2002 have filed the present Notice of Motion in the year 2011 for taking their Written Statement on record. It is held that no case for grant of reliefs sought in the Notice of Motion is made out. The Learned Single Judge held that the instant case could be governed by the legal position prevailing prior to the amendment in the year 2002 in the Code of Civil Procedure, 1908 which is more rigorous than the one which is introduced by the amendment. It is further held that assuming that the Applicants who are the heirs of the Original Defendant No.1 are brought on record in the year 2002 that the application would be governed by the amended provisions of the Code of Civil Procedure. The Learned Single Judge distinguished some of the Judgments cited by the Defendant Nos. 1(A), 1(B) and 1(F) in support of their plea that the delay in taking Notice of Motion be condone and their Written Statement be taken on record.