R.D. DHANUKA, J.

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) to (1F) are legal heirs of one Mr.Bitesh Hanumantrao Sagar, original Defendant No.1. Defendant Nos. 1(A) to 1(F) were brought on record after demise of Defendant No.1 as his legal heirs sometimes in the year 2002. Respondent Nos. 1(A) to (1F) in this Appeal are Original Plaintiffs and have filed a suit for declaration that agreement dated 5th April 1974 as modified by the Agreement dated 11th November, 1978 and the agreement incorporated in the Consent Terms dated 28th January, 1981 and two Powers of Attorney on 13th November, 1978 have been duly and validly terminated. It is the case of the Plaintiffs that they are the lessor of the of the plot of land which was leased out to Defendant No.1 for the purpose of development. Some of the Defendants in the said suit have already filed Written Statements on 24th January, 2007. The aforesaid suit appeared on the Board of S.J.Vazifdar J., on 13th July, 2007 under the caption “For want of Written Statement”. The matter appeared on Board on 31st July, 2007 and 14th September, 2007 under the caption “Undefended suits for exparte decree”. The matter was thereafter shown on Board for hearing and final disposal on 15th October, 2007 and 31st March, 2008. On 7th April, 2008, S.C.Dharmadhikari, J. framed issues in the aforesaid suit. None appeared for Defendant Nos. 1(A) to 1(F). The Plaintiffs through their Learned Counsel prayed that a decree be passed against Defendant Nos. 1(A) to 1(F) for want of Written Statement by invoking the provisions of Order 8 Rule 5 Sub-Rule 2 read with Order 8 Rule 10 of the Code of Civil Procedure. From the perusal of the Order dated 7th April, 2008 it is clear that no such decree came to be passed as prayed by the Plaintiffs on 7th April, 2008 or thereafter though the matter appeared on Board from time-to-time.

4. 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