1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO. 975 OF 2009 WITH CIVIL APPLICATION NO.1210 OF 2009 Dattatray B. Tapkire Since deceased 1(a) Adv. Shri Girish D. Tapkire & Ors. ...Appellants. v. Bashir S. Mulla ...Respondent. Mr.Anilkumar Patil, adv. For the Appellant. Mr.Umesh R. Mankapure, adv. For the Respondent. CORAM : J.H. BHATIA, J. DATED : MARCH 29, 2010 P.C. 1 Heard the learned counsel for the parties. 2 Plaintiff/appellant had filed regular civil suit no.390/96 in the Court of Joint Civil Judge Junior Division, Sangli for possession of the suit premises on the ground that defendant/respondent was in unauthorised occupation. Defendant had filed written statement. Trial Court had directed him to deposit certain amount towards occupation charges, which he failed to deposit within the stipulated period, therefore, the trial Court struck down the defence of the defendant by invoking the powers under Order 39 Rule 11(1) C.P.C. as applicable to the State of Maharashtra. However, defendant was allowed to cross- 2 examine the plaintiff/witness. That right was not availed by the defendant. Suit was decreed . The said judgment and decree were challenged by the defendant in regular civil appeal no.181/99. The appellate Court set aside the judgment and decree and remanded the matter back with liberty to the defendant to cross-examine the plaintiff and also allowed the parties to lead further evidence. Defendant was directed to pay cost of Rs.2,000/- to the plaintiff. That order is challenged in the present appeal. 3 The learned counsel for the plaintiff/appellant contends that the plaintiff has already expired pending the appeal before the District Court and, therefore, the order passed by the appellate Court to offer him for cross-examination can not be implemented. He also contended that the defendant had not availed the opportunities, firstly, to deposit the amount as per the Court's order and secondly, to cross-examine the plaintiff and the witnesses and, therefore, the appellate Court was wrong in holding that the principles "Audi Altram Paltram" will be applicable. On hearing the parties and in view of the circumstances, I am satisfied that it is not the case where the defendant was condemned unheard and infact, he himself was at fault in not complying with the order of the Court to deposit the amount or in not availing the opportunity of cross-examining 3 the witnesses and the plaintiff. Even though I do not subscribe to the reasons given by the appellate Court. I find that in view of the provisions of Sub-rule (2) of Rule 11 of the Order 39, 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 proceeding or may hear the party in defence. Power given to the Court could be exercised by the trial Court and could also be exercised by the appellate Court. The appellate Court noted that amount as per the order of the learned trial Court has been already accepted. Occupation charges are being regularly paid as stated by the defendant/respondent. The appellate Court while restoring the right of defence to the defendant imposed cost of Rs.2,000/- and that cost has been paid. In view of this, in my considered opinion, the impugned order has been actually passed in the interest of justice so that defendant could properly defend the suit wherein his possession over the suit premises is at stake. Therefore, I do not see any reason to interfere in the impugned order. 4 However, it is made clear that evidence of the plaintiff, who had expired after disposal of the suit will be taken into consideration by the trial Court and will not be ignored on the ground that he could not be cross-examined as defendant was responsible in not availing the 4 opportunity of cross-examining him. With these clarifications, Appeal stands dismissed. 5 The trial Court shall expedite the hearing of the suit and dispose off the same as early as possible and in any case by the end of August, 2010. 6 As the appeal itself is disposed off, civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)