1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3810 OF 2009 Shantaram Shankar Golambre & Ors. .. Petitioners. Vs. Hassankhan Alikhan Deshmukh & Ors. .. Respondents. Mr.J.G.Reddy for the petitioners. Mr.C.G.Gavnekar for respondent nos.1 to 8. Mr.R.M.Patne A.G.P. for the State. Coram: D.B. BHOSALE, J. Dated : 18TH AUGUST, 2009 P.C. . Heard learned counsel for the parties. 2. Rule. By consent, rule made returnable forthwith. Learned counsel appearing for the respondents waives service. The petition is taken up for hearing and final disposal at the admission stage itself. 3. This writ petition challenges the orders dated 24.10.2008 and 14.11.2008. Both the orders read thus: Order dated 24.10.2008 (Exhibit-35) “Heard the advocate for defendant, plaintiff and advocate absent. Perused record where several opportunities has given to plaintiff but progress of suit is arrested. It 2 appears to me plaintiff do not wanted to conduct the case hearing. If application is allowed probably loss will cause to plaintiff. The defendant no.1 to 8 advocate submits all defendants are coming from Raigad and always ready to argue. Therefore, the above request of applicant is allowed subject to cost of Rs. 750/- to defendant no.1 to 8 and for Advocate to defendant no.9 Rs.750/- are costed. If cost is not paid application would treated cancelled for end of justice.” Order dated 14.11.2008 below Exhibit-1 “Read proceeding record. Heard Advocate for plaintiff, Advocate for deft.no.1 & 8 and Advocate for Wakf board deft.no.9. The opportunity of hearing is given to advocate of plaintiff and defendant nos.1 to 9, respective advocates on the point of non compliance of the order of the court on Exhibit-35 of dated 24.10.2008 but not shown bonafide for its compliance by advocate for plaintiff. Therefore, in view of non compliance of order of court suit is dismissed under O 39 Rule 11 of Code of Civil Procedure. No order as to cost for ends of justice.” 3. From bare perusal of the order dated 14.11.2008 it is clear that the said order has been passed under sub-rule (1) of Rule 11 of Order 39 of the Code of Civil Procedure (for short “the 3 Code”). Sub-rule (2) of rule 11 provides that the court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceedings or may hear the party in defence, as the case may be, if the party that has been responsible for default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court. In view thereof it is open to the petitioners to file an application as contemplated by sub-rule (2) of rule 11 of Order 39 of the Code seeking restoration of the suit within a period of four weeks from today after complying with the order dated 24.10.2008. If the petitioner files an application as, aforestated, same may be considered on merits in accordance with law. While passing this order I shall not be understood to have examined merits of the case. With these observations the Rule is disposed of. 4. Interim order passed by this court pending admission of this writ petition shall remain operative for a period of four weeks from today. (D. B. Bhosale, J.)