: 1 : 7834-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7834 OF 2011 Rayppan Chettiyar .. Petitioner v/s. M/s. Kala Silk Factory .. Respondent ......... Mr. Prashant Patil for the petitioner Mr. D.N. Kamara for the respondent ......... CORAM : R.Y.GANOO, J DATE : 23rd SEPTEMBER,2011. P.C. : 1. Rule. Rule made returnable forthwith. Learned advocate for the respondent waives service. By consent, petition is taken up for hearing. 2. The respondent herein filed R.C. Suit No.1524 of 2001 in the Court of learned 3rd Civil Judge, Senior Division, Thane (hereinafter referred to as learned trial Judge) against the petitioner for recovery of possession in accordance with the provisions of the Bombay Rent Act. The learned trial Judge felt satisfied that the suit summons is served and, therefore, he passed an order directing that the suit shall proceed ex-parte as according to learned trial Judge, the petitioner did not respond. The said suit came : 2 : 7834-11-wp=.sxw to be decreed on 17th April, 2004. The petitioner came to know about the said decree. Hence, he filed Misc. Application No.517 of 2004 for setting aside the said decree on the ground that the suit summons was not served upon the petitioner. That application came to be rejected on 23rd September, 2008. Being aggrieved by the said order, the petitioner filed Misc. Civil Appeal No.160 of 2008 in the Court of learned Ad-hoc District Judge-5 and Asstt. Sessions Judge at Thane (hereinafter referred to as learned Appellate Court). The said application was rejected by order dated 11th August, 2011 against which this petition is filed. 3. I have heard learned advocates on both sides. Learned advocate for the respondent stated upon instruction that no efforts were made by the respondent to serve the petitioner at his residential address. Record shows that the suit summons was served at the factory premises being the suit premises. The bailiff went to the site, pasted the suit summons and in the bailiff’s report, there is clear cut observation that the premises were closed. It is the case of the petitioner that the industrial activity was closed during the relevant time and, therefore, the petitioner was not attending the factory premises and that is how he was now in a position to know the institution of the suit and related aspects. I have perused the impugned : 3 : 7834-11-wp=.sxw order. 4. In my view, as the factory premises were closed at the relevant time the explanation given by the petitioner can be accepted. In my view, in a situation like this, interest of justice would be met if the petitioner is permitted to defend the suit by entering his appearance and by directing the petitioner to pay substantial costs of Rs.20,000/- for setting aside ex- parte decree dated 17th April, 2004. Since the suit is now to be defended by the petitioner and the suit is of the year 2001, the interest of justice equally require that the learned trial Judge before whom the suit will be assigned shall hear and dispose of the suit as expeditiously as possible and preferably by 30th April, 2012. This order is being passed in the presence of learned advocate for the petitioner, who upon instructions from the petitioner stated that the petitioner shall co-operate with the learned trial Judge for the disposal of the suit. The learned advocate for the petitioner stated that petitioner will deposit in the trial Court cost of Rs.20,000/-. In this connection, I wish to pass order directing the petitioner to clear off all the arrears upto September, 2011 by depositing the arrears of rent on or before 15th October, 2011. If some amount is already deposited, the credit shall be given to the petitioner. From the month of October onwards, the : 4 : 7834-11-wp=.sxw petitioner shall keep on depositing the rent in the Court as per the terms of the tenancy and the respondent landlord will be able to withdraw from the Court all the amounts, which will be deposited by the Court upto 15th October, 2011 and even thereafter. In view of the above, petition is disposed of by passing following order. ORDER (i) Writ Petition is allowed. Rule is made absolute in terms of prayer clause (a). (ii) R.C. Suit No.1524 of 2001 is restored to the file of Civil Judge, Senior Division, Thane. Learned Principal District Judge, Thane shall assign this suit to appropriate Court for disposal on merits. (iii) Learned Civil Judge, Senior Division, Thane to whom this suit shall be assigned shall hear and dispose of the suit as expeditiously as possible preferably before 30th April, 2012. Statement made by learned advocate for the petitioner that the petitioner shall co- operate with the Court for early disposal is recorded. The petitioner shall arrange to pay to the respondent costs of Rs.20,000/- for grant of this petition. Cost of Rs.20,000/- shall be deposited by the petitioner in the Court of learned Civil Judge, Senior Division, Thane on or before 15th October, 2011. Cost condition precedent for future : 5 : 7834-11-wp=.sxw proceedings in the said suit, except assigning the suit to the appropriate Court. (iv) Petitioner is hereby directed to clear off all the arrears of rent upto the month September, 2011 by depositing the said arrears on or before 15th October, 2011. If any amount is already paid or deposited, the petitioner shall get the credit of the same. The amount deposited up to 15th October, 2011 towards rent as well as costs, can be withdrawn by the respondent without security or guarantee. The petitioner shall continue to pay the rent for the month of October, 2011 onwards as per the terms of tenancy by depositing the same in the trial Court. As and when the said rent is deposited respondent is permitted to withdraw the same without security or guarantee. (v) Respondent shall produce an authenticated copy of this order before the learned Principal District Judge, so that he could act on it so as to assign the suit to appropriate Court. (R.Y.GANOO, J.)