=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.1156 NO.1156 NO.1156 OF 2003 OF 2003 OF 2003 IN IN IN SUIT SUIT SUIT NO.1260 NO.1260 NO.1260 OF 1983 OF 1983 OF 1983 Devraj Sukhari Shah and anr. ...Appellants v/s M/s Veetrag Builders Pvt.Ltd. and ors. ...Respondents Mr D.H. Mehta with Mr Ketan Parekh and Ms Koyal Shah i/b Mr K.R. Parekh for Appellants. Mr V.N. Kantawala with Ms Namrata Butala i/b M/s Kantawala and Co. for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 31ST MARCH 2009 31ST MARCH 2009 31ST MARCH 2009 =2= P.C. :- 1. By this appeal, certain interlocutory orders passed in suit No.1260 of 1983 as also the decree passed in that civil suit are challenged. The relevant facts are that the respondents filed civil suit No.1260 of 1983 principally seeking a decree of specific performance in relation to the agreement dated 26th October 1980. The present appellants who were defendant Nos.1 to 4 were duly served with the suit summons but they did not file their written statement. Ultimately, the suit came before the Court on 17th October 2003. At the request of appellants - defendants, the Court permitted them to file written statement on or before 24th November 2003 subject to payment of Rs.5,000/- as costs. The appellants did not deposit amount of cost, did not file written statement. The matter came before the Court on 24th November 2003. The Court finding that neither the amount of cost has been deposited nor the written statement has been filed, decided to proceed ex-parte against the appellants in the absence of any written statement. An appeal being appeal No.1066 of 2003 was filed against that order but it was neither moved before the Court nor any order was obtained. The amount of cost was still not deposited. Then the suit =3= came before the Court on 1st December 2003. The Court directed the plaintiffs to file affidavit of evidence and compilation of documents. The suit came before the Court on 12th December 2003. On that day, the appellants appeared and sought leave to tender the written statement. The Court did not permit that and the Court proceeded to pass decree relying on the pleadings, documents filed and oral evidence led on behalf of the plaintiffs. The decree was passed on the same day viz. 12th December 2003. Appeal No.1066 of 2003 was disposed off by the Division Bench on 15th December 2003 on the ground that now the suit itself has been disposed off. 2. We have heard learned counsel for both the sides. We find from the record that the Court had decided to proceed ex-parte against the appellants and they were not permitted to file written statement. They were also not permitted to cross-examine the witness whose affidavit was filed on behalf of the plaintiffs and decree has been passed against the appellants. In our opinion, therefore, even assuming that the learned Single Judge was justified in not permitting the appellants to file their written statement, the learned Single Judge was at all not justified in passing the decree without granting an opportunity to the appellants to cross-examine the witness. It is a settled law that =4= even without filing the written statement, the defendant is entitled to cross-examine the witness produced by the plaintiff. In our opinion, the decree passed by the Court dated 12th December 2003 is required to be set aside and the matter is liable to be remitted back to the learned Single Judge. Now, as the matter is to be remitted back to the learned Single Judge, the question whether the appellants should be permitted to file written statement arises for consideration. The learned counsel appearing for appellants submits that he accepts gross delay on the part of the appellants in filing written statement, but he submits that now as the suit is being remitted back, the appellants should be given an opportunity to file written statement. He submits that the appellants are willing to deposit in this Court the amount which according to the plaintiffs has been paid by the plaintiffs to the defendants. The appellants are also willing to pay Rs.50,000/- as cost for being permitted to file written statement. In our opinion, considering that the substantial proprietary rights of the appellants are involved and as the suit is being remitted back to the learned Single Judge, in view of the submissions made by the learned counsel for appellants, the appellants should be given an opportunity to file written statement. 3. In the result therefore, appeal succeeds and =5= is allowed, the decree dated 12th December 2003 is set aside, suit No.1260 of 1983 is remitted back to the learned Single Judge for decision in accordance with law. The order made by the learned Single Judge declining to take written statement of the appellants on record is set aside as also the order proceeding ex-parte against the appellants is set aside. The written statement is taken on record subject to the condition that within a period of two weeks from today, the appellants pay to the plaintiffs through their Advocate an amount of Rs.50,000/- as cost and the appellants deposit in this Court an amount of Rs.2,72,000/- within a period of four weeks from today with due intimation to the plaintiffs. On deposit, the amount shall be invested in a nationalised bank in fixed deposit to the credit of suit No.1260 of 1983. The learned counsel appearing for appellants states that during the pendency of the suit, the appellants shall maintain status-quo in relation to the suit property. The statement is accepted. Considering that the suit was filed in the year 1983, the learned Single Judge is requested to hear and dispose off the suit as expeditiously as possible. It is made clear that if the appellants fail to comply with the directions given above, within the period mentioned above, the appeal shall be treated as dismissed automatically. =6= . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)