1 30 fa.1377.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1377 OF 2010 Ramesh Sukhdeo Chaudhari. ... Appellant Versus Dinesh Rajnikant Trivedi. ... Respondent ----- Mr. P.J.Pawar for the Appellant. Mr. G.S.Bhat for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 08 th March, 2011. P.C. 1 Heard the learned counsel appearing for the parties. Taken up for final disposal at the admission stage. 2 The Appellant is the original defendant and the Respondent is the original plaintiff. 3 The suit filed by the Respondent for possession of the suit premises has been decreed. Apart from passing the decree for possession, the trial Court has passed a decree regarding payment of damages. Clauses (3) and (4) of the operative part of the decree read 2 30 fa.1377.10 thus: “3. The defendant is hereby further directed to pay Rs.20,000/- towards damages to the plaintiff. 4. The defendant is hereby further directed to pay Rs.4,000/- per month to the plaintiff from filing of this suit till the possession of the suit premises handed over to the plaintiff.” 4 The Appellant has deposited in this Court a sum of Rs. 20,000/- in terms of clause (3) of the operative part of the decree. Apart from the said amount, a sum of Rs.2,00,000/- has been deposited by the Appellant, which represents decretal amount in terms of clause (4) of the operative part of the decree. 5 The learned counsel appearing for the Appellant submitted that the Appellant has not filed written statement after his appearance in the Court and therefore, a decree has been passed against the Appellant in exercise of powers under Rule 10 of Order VIII of the Code of Civil Procedure, 1908. He submitted that as the Appellant has deposited the aforesaid amounts, he may be given an opportunity to contest the suit. The learned counsel appearing for the Appellant on instructions states that the Appellant has no objection if the Respondent is permitted to withdraw the amount deposited by him in this Court subject to giving undertaking to redeposit the said amount with interest accrued thereon in the event the Respondent fails in the suit. The learned counsel appearing for the Respondent supported the impugned judgment and 3 30 fa.1377.10 decree and he submitted that no interference is called for. 6 I have given careful consideration to the submissions. After service of summons, the Appellant appeared before the trial Court in November 2007. On 18 th September, 2008 the trial Court has passed an order directing that the suit will proceed without the written statement of the Appellant. As pointed out earlier, the Appellant has deposited a sum of Rs.2,20,000/- in this Court. The Appellant has no objection if the said amount is withdrawn by the Respondent on the condition specified above. The impugned decree is a decree of drastic nature directing the Appellant to deliver possession of the Shed/Gala. Considering the aforesaid statement made by the learned counsel appearing for the Appellant, if decree is set aside, the Respondent will be compensated as he will be permitted to withdraw the amount. In addition, the Respondent can be compensated by awarding costs. 7 Hence, I pas the following order: i. The impugned decree is quashed and set aside and the Special Civil Suit No.349 of 2007 is restored to the file of the trial Court ; ii. The parties are directed to appear before the trial Court on 28 th April, 2011 at 11:00 am. Written statement shall be filed by the Appellant on the date of appearance and the trial Court shall not 4 30 fa.1377.10 grant any further time to the Appellant to file written statement ; iii. The Respondent is permitted to withdraw the amount of Rs.2,00,000/- and Rs.20,000/- deposited by the Appellant in this Court together with interest accrued thereon. The withdrawal shall be permitted only after the Respondent files an undertaking in this Court stating that in the event the trial Court does not pass money decree against the Appellant, the Respondent will re-deposit the said amount with appropriate rate of interest as may be determined by the trial Court. On the Respondent filing undertaking, the Registrar Judicial-I shall order premature encashment of the fixed deposit and the amounts shall be paid over to the Respondent ; iv. Till the disposal of the suit, the Appellant is restrained from creating third party rights and from parting with possession with the suit property ; v. The hearing of the suit is expedited and the trial Court shall make an endeavour to decide the suit on or before 30 th November, 2011 ; vi. In the event the suit is not disposed of within the aforesaid limit, it will be open for the Respondent to 5 30 fa.1377.10 apply before the trial Court seeking a direction against the Appellant to deposit a reasonable compensation ; vii. The Appellant shall pay costs of the appeal to the Respondent quantified at Rs.5,000/-. The amount of costs shall be paid or shall be deposited with the trial Court within a period of four weeks ; viii. Payment of costs shall be condition precedent ; ix. In view of this order, Civil Application No. 5006 of 2009 does not survive and the same is disposed of; x. The trial Court and the parties to the appeal shall act upon an authenticated copy of this order. [ A.S.OKA, J ]