1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2374 OF 2009 Mohammed Yusuf Wali Mohammed Khan ...Petitioner vs. Smt.Khan Talmunnissa w/o Maqbool Ahmed Khan and others ...Respondents Mr.C.G.Gavnekear i/b Mr.Sunil Singh for the petitioner Mr.Virendra Dubey for the respondent. CORAM :A.S.OKA,J. DATE : JULY 27, 2009 P.C. 1 On 22 nd July 2009, the submissions of the learned counsel for the parties were heard. The petition was kept today as the petitioner sought time to tender an undertaking. Accordingly, writ petition is taken up on board today. 2 I have heard the learned counsel for the petitioner and the learned counsel for the respondents. The respondents are the original plaintiffs. The respondents filed a suit under section 41 of Presidency Small Causes Court Act for evicting the petitioner. An order dated 30 th November 2007 order was passed by the learned Judge of the court of Small Causes directing the petitioner to pay compensation of Rs.5000/- per month from April 2006 till November 2007 within a period of four weeks from the said date. The learned Judge also directed the petitioner to pay monthly compensation at the rate of Rs. 2 5000/- from December 2007 till the final disposal of the suit on or before 10 th day of every calendar month. The petitioner challenged the said order by preferring an appeal before the Appeal Bench of Court of Small Causes. The appeal came to be dismissed. The challenge in this petition under Article 227 of the Constitution of India is to the aforesaid orders dated 30 th November 2007 and 20 th December 2008 passed by the trial court and Appeal Court. 3 The learned counsel for the petitioner states that the petitioner does not wish to prosecute the petition further and is agreeable to deposit the compensation amount at the rate of Rs.5000/- per month as directed by order dated 30 th November 2007. He states that arrears of compensation of Rs.2,00,000/- from April 2006 to July 2009 shall be deposited with the trial court on or before 31 st October 2009. He has tendered an undertaking of the petitioner who is stated to be personally present in the court today. He has undertaken to pay compensation at the rate of Rs.5000/- per month. He has also undertaken to deposit the arrears of compensation in the sum of Rs. 2,00,000/- with the trial court on or before 31 st October 2009. He has given an undertaking that he will continue to pay monthly compensation of Rs.5000/- as ordered till the disposal of the suit. The learned counsel for the petitioner has placed on record a true copy of the order 3 dated 17 th April 2009 by which the court of Small Causes has directed the striking out the defence of the petitioner on account of non compliance of the order dated 30 th November 2007. The learned counsel for the petitioner submitted that the said order has been passed during the pendency of this petition. He submitted that the petitioner has shown willingness to comply with the order and hence the said order may be quashed and set aside. 4 The learned counsel for the respondent pointed out the gross defaults committed by the petitioner and submitted that no indulgence be shown to the petitioner 5 I have carefully considered the submissions. By filing affidavit cum undertaking, the petitioner has accepted the correctness of the order dated 30 th November 2007 and has undertaken to deposit arrears as also to continue to pay monthly compensation of Rs.5000/- till the disposal of the suit. He has also undertaken to deposit arrears of Rs.2,00,000/- with the trial court on or before 31 st October 2009. 6 In view of the willingness shown by the petitioner to comply with the order dated 30 th November 2007, an opportunity deserves to be granted to the petitioner to comply with the said order. If the petitioner complies 4 with the said order by depositing the entire arrears of compensation on or before 31 st October 2009 and by paying current compensation regularly, he will have to be permitted to defend the suit by setting aside the order dated 17 th April 2009. If he fails to comply with the undertaking, the order dated 17 th April 2009 will automatically become operative. As the petitioner has undertaken to deposit the amount, no prejudice will be caused to the respondents if one more opportunity is granted to the petitioner. 7 The undertakings of the petitioner contained in the affidavit dated 27 th July 2009 (marked `X for identification) are accepted. In view of the undertakings, the petitioner will have to comply with the order dated 30 th November 2007. 8 Time is granted to the petitioner till 31 st October 2009 to deposit arrears of Rs.2,00,000/- payable upto end of July 2009. The petitioner shall continue to go on depositing a sum of Rs.5000/- per month with the trial court on or before 10 th day of every calendar month from August 2009. 9 In view of the undertakings of the petitioner, the order dated 17 th April 2009 passed by the trial court below Exh.15 is quashed and set aside. 5 10 If the petitioner fails to pay arrears of Rs. 2,00,000/- on or before 31 st October 2009, the order dated 17 th April 2009 passed below Exh.15 will automatically stand restored and the defence of the petitioner shall stand struck off. 11 In the event, the petitioner commits any default in deposit of the monthly compensation, it will be open for the respondents to apply for striking out the defence of the petitioner. It is made clear that the deposit of the amount of Rs.5000/- per month from April 2006 by the petitioner shall be without prejudice to his rights and contentions in the pending suit. As and when the amounts are deposited, the respondents will be entitled to withdraw the same. It is made clear that deposit of the amount by the petitioner and withdrawal of the same by the respondents will be subject to final outcome of the suit. 12 Writ petition is disposed of in above terms. 13 Hearing of the suit is expedited. JUDGE