Mrs. Wahidunnisa Abdul Wahab And ANR v. Mr. Abdul Subhan S/O Abdul Wahab And ORS

13.nms.684.2016.doc dik

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

O.O.C.J.

NOTICE OF MOTION NO. 684 OF 2016 IN SUIT NO. 608 OF 2014 Mrs Wahidunnisa Abdul Wahab & Anr.

...Applicants/Plaintiffs vs Mr Abdul Subhan & Ors.

...Defendants .....

Mr Mayuresh Borkar for the Applicants/Plaintiffs Mr J. Ansari I/b Shamim & Co. for Defendant Nos. 6 to 9. .....

Digitally signed by Dhanappa I. Koshti Date:

2019.07.15 16:11:45 +0530 CORAM : B. P. COLABAWALLA, J.

Dhanappa I. Koshti JULY 12, 2019.

P.C. :

This Notice of Motion has been filed seeking to set aside the order dated 9th April, 2015 passed by the learned Prothonotary and Senior Master of this Court dismissing the above suit for noncompliance of serving the defendants. There is delay of 315 days in filing the present Notice of Motion.

The learned advocate appearing on behalf of the applicants / plaintiffs states that all the defendants have been served and he shall file an affidavit proving the service within a period of two weeks from today. The said statement is accepted as an undertaking given to this Court.

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13.nms.684.2016.doc I must note, on the previous occasion defendant Nos.4 and 5 as well as defendant Nos.6 to 9 were represented through advocates. Considering the averments made in the affidavit in support, the Notice of Motion is allowed in terms of prayer clauses (a) and (b) which read thus- "(a) That the delay of 315 days in filing the present Notice of Motion be condoned;

(b) That the order dated 9th April, 2015 passed by the Ld. Prothonotary and Senior Master dismissing the above suit may be set aside." The condition precedent for allowing this Notice of Motion is that, the applicants/ plaintiffs shall pay costs of Rs.50,000/- to the Tata Memorial Hospital, Mumbai within a period of two weeks from today and a receipt showing the compliance of the payment of costs shall be filed on the record of this Court.

It is clarified that if the costs are not paid within the stipulated period, this Notice of Motion shall stand dismissed without further reference to the Court. The Notice of Motion is disposed of in the aforesaid terms.

(B.P.COLABAWALLA, J.) Pg 2 of 2