*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3672/2008 Vrandavandas Mohanlal Sheth and another. ..Petitioners -VERSUS- Rajesh Amritlal Shah and another. ..Respondents ............... Mr.Y.S.Bhate, Advocate for the Petitioners. Ms.Geeta Shastri, Advocate i/b M/s Khilanani & Company, for the Respondents. ............... CORAM: A.P. DESHPANDE, J. Dated 09th December, 2009. PC:- 1 Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2 The present Petitioner is the landlord who instituted a suit for ejectment and possession against the Defendant (Dahiben Amritlal Shah). The Defendant did contest the suit by filing the Written Statement and was vigilant in contesting the suit before the Trial Court till the year 2002. Thereafter, the Defendant did not remain present, hence, exparte decree came to be passed on 23.07.2004. Thereafter, the decree came to be executed on 13.12.2004. After execution of the exparte decree, on 01.02.2005 the Defendant moved an application for condonation of delay and for setting aside the exparte decree. The main ground set out in the *2* said application was that the Defendant was suffering from cancer and was not keeping good health. It was also stated that the Advocate on record appearing for the Defendant had assured her that as and when her presence is required he would intimate her about the dates in the Trial Court. The Trial Court rejected the application by observing that no sufficient cause is shown to set aside the exparte decree. Aggrieved by the said order, the Defendant preferred an appeal before the Appellate Bench of Small Causes Court and the Appellate Court after considering the evidence and material on record has held that the Defendant has shown sufficient cause for not appearing before the Trial Court when the case was fixed and hence, set aside the exparte decree. Not only the Appellate Court set aside the exparte decree but it directed the present Petitioner to restore the possession obtained by the Petitioner in execution of decree on 13.12.2004. It is this order, which in first place set aside the exparte decree and in second place directs restitution of possession, which is challenged by filing the present Writ Petition. 3 The learned counsel for the Petitioners has contended that the Appellate Court could not have exercised the power under Section 144 of the Civil Procedure Code and the power is available only to the Court of first instance. He has placed reliance on the judgment of the learned Single Judge of this Court in 1996(2) Bombay C.R. 357 (Jairam Jethmal Tapadia Vs. Kamal Kishor Bhagirath Agrawal), which takes a view that it is only the Court of first instance who can pass an order of restitution of possession under Section 144 of the Civil Procedure Code and the Appellate *3* Court has no jurisdiction to exercise the power under Section 144. For coming to the said conclusion, the learned Single Judge has placed reliance on the Supreme Court’s judgment AIR 1980 SC 1528 (State Bank of Saurashtra vs. Chittaranjan Rangnath Raja). 4 In that view of the matter, the learned counsel for the Respondents/ Defendants submits that, that part of the order passed by the Appellate Court which directs restoration of possession to the Defendants be set aside and the matter be remitted to the Trial Court to consider the Defendants’ prayer for restoration of possession. 5 So far as setting aside the exparte decree is concerned, the learned counsel for the Petitioners has submitted that there was no sufficient cause for the Defendant for not appearing before the Trial Court, consequent upon which, the suit came to be decreed exparte. 6 Perused the order passed by the first Appellate Court, same goes to take a pragmatic view of the matter. It is a matter of record that the Defendant who was suffering from cancer expired during the pendency of appeal. During the relevant period, she must have been in advance stage of cancer and could not have been able to look after the litigation. Thus, the view taken by the Appellate Bench of Small Causes Court that the Defendant was prevented from appearing before the Trial Court on account of sufficient cause, does not call for any interference as it takes very possible view of the matter. 7 In the result, in view of concession made available by the learned counsel for the Respondents/ Defendants and in view of *4* the judgment of this Court referred to herein above, I quash and set aside direction No.4 in operative part of the order of the Appellate Bench of Small Causes Court which reads thus:- “4. The Plaintiffs are directed to hand over vacant and peaceful possession of the suit premises namely Room No.16 on First Floor in the building known as S.D. Dudhwala at Sadashiv Cross Lane, Near Chaktsak School, Girgaum, Mumbai 400004 to the Defendants on or before 30.04.2008.” 8 The Respondents/ Defendants are granted liberty to move the Trial Court by making an appropriate application under Section 144 of the Civil Procedure Code seeking restoration of possession consequent upon setting aside the exparte decree. I hope and trust that the Trial Court shall proceed to decide the application which the Defendants would be moving under Section 144 as expeditiously as possible. 8 Rule made absolute in the above terms. (A.P. Deshpande, J)