1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.456 OF 2010 Anwar Abdul Kadar Motiwala ...Petitioner vs. Iqbal Ishak Shariff ...Respondent Mr.Samir Vaidya for the petitioner Mr.P.Gidwani a/w Mr.S.Nagradaria for the respondent CORAM :A.S.OKA,J. DATE : MAY 7, 2010 P.C.: 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. Earlier this writ petition was dismissed. By a subsequent order dated 22nd April 2010, the order of dismissal has been recalled. The petition is taken up for final disposal. 2 The petitioner in this writ petition under Article 227 of the Constitution of India is the defendant-tenant in a suit for ejectment filed by the respondent-landlord in the Court of Small Causes. In the said suit, an interim order was passed by the trial Court directing the petitioner to deposit a sum of Rs.3000/- per month from 8th August 2006 till 31st December 2006. A direction was also issued to the petitioner to keep on depositing the said amount at the same rate till the disposal of the suit. The order was challenged by the petitioner before the Appeal Bench of the Court of Small Causes. A modification was made by the Appeal Bench by bringing down the amount to a sum of Rs.1500/- per month. Time was granted to the petitioner to deposit the arrears till 12th March 2009. The order of the Appeal Bench was 2 challenged by the petitioner by filing a writ petition in this Court. The petition was dismissed and the said order was confirmed. In another writ petition being writ petition no.4182 of 2009 filed by the petitioner, by an interim order dated 18th May 2009, the time granted by the Appeal Bench to deposit the amount till 12th March 2009 was extended till 8th June 2009. However, the petitioner did not comply with the interim order of this Court by depositing the arrears within the extended period. Therefore, the said writ petition was rejected by an order dated 14th August 2009. It must be noted here that when the said writ petition came up before this Court on 14th August 2009, a submission was made that the petitioner has applied for modification of the order dated 19th March 2009 passed by this Court by which the order of the Appeal Bench was confirmed. 3 It appears that an application was taken out by the respondent at Exhibit-18 for striking out the defence of the petitioner on account of non-compliance with the order of deposit. The petitioner made an application at Exhibit-31 seeking extension of time to deposit the arrears and a prayer was made for grant of installments. The application made by the respondent-landlord at Exhibit-18 for striking out the defence was allowed by order dated 15th October 2009. The application at Ex.31 made by the petitioner was rejected by a separate order passed on the same day. These two orders have been impugned in this writ petition under Article 227 of the Constitution of India. It must be noted here that when this writ petition came up before this Court on 15th January 2010, by way of indulgence, time was granted to the petitioner till 1st February 2010 to comply with the order of the Appeal Bench. As arrears were not deposited, for the reasons recorded, the writ petition 3 was dismissed. 4 The petitioner who is personally present in the court today has tendered his undertaking on oath. The undertaking states that the amount at the rate of Rs. 1500/- per month up to April 2010 has been deposited. The petitioner has undertaken to deposit the amounts as per order dated 19th January 2007 passed by the trial court which was modified by order dated 31st January 2009 passed by the Appeal Bench of the Court of Small Causes. The petitioner has undertaken to deposit a sum of Rs. 1500/- per month on or before 10th day of every calendar month with effect from May 2010 and has stated that he will continue to deposit the said amount till the disposal of the suit. It must be stated here that though persistent defaults have been committed by the petitioner, it cannot be ignored that the suit is for eviction and as a consequence of order passed below at Exhibit-18, the petitioner will not be entitled to defend the suit. Though belatedly, the petitioner has complied with the order of which the breach was complained of. The petitioner has given an undertaking to comply with the order. Therefore, an opportunity deserves to be granted to the petitioner to contest the suit. It is true that the respondent has suffered in the sense that the suit has been delayed and the respondent was required to contest the proceedings filed in this Court. The respondent can be compensated by ordering the payment of costs. It must be stated here that this petition which was dismissed on merits was restored by this Court on 22nd April 2010 only by way of indulgence on account of subsequent deposit of arrears by the petitioner. Even while restoring the petition, this Court has not directed the petitioner to pay costs. Therefore, the petitioner will have to pay costs which is quantified at Rs.10,000/- 4 payable to the respondent. 5 After the order of striking out defence was passed, the respondent has filed an affidavit in lieu of examination-in-chief. The said affidavit obviously does not deal with the defence of the petitioner. Now the trial Court will have to frame the issues. Therefore, permission will have to be granted to the respondent to file fresh affidavit in lieu of examination-in-chief. 6 Only by way of indulgence, the order of striking out defence will have to be set aside. It must be clarified that in case the petitioner commits any two consecutive defaults in complying with the order dated 31st January 2009 of the Appeal Bench, the defence of the petitioner will stand automatically struck out without further reference to the Court. 7 Hence, I pass the following order : i) The impugned order dated 15th October 2009 passed below application at Exhibit-18 is quashed and set aside and the petitioner is permitted to defend the suit. The application at Exhibit-31 does not survive. ii)The undertaking tendered by the petitioner is taken on record and marked `X for identification. The Advocate for the petitioner states that the petitioner is personally present in the Court and he has voluntarily tendered the undertaking after fully understanding the implications of the undertaking. The undertaking is accepted. iii)It is made clear that in the event the petitioner commits two consecutive defaults in deposit of amount of Rs.1500/- per month on or before 10th day 5 of every calendar month, the application at Exhibit-18 will stand allowed and the defence of the petitioner will stand struck out without further reference to the Court. iv)It will be open for the respondent to file a fresh affidavit in lieu of examination-in-chief after issues are settled. v) The petitioner is directed to pay costs of Rs. 10,000/-to the respondent within 10 weeks from today. vi)The petition is partly allowed in above terms. JUDGE