1 IN THE HIGH COURT OF JUDICATURE AT BOMABY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.694 OF 2009 WITH C.A.NO.933 OF 2009 Smt. Hemlataben S. Shah and ors. ..Appellants. Vs. M/s. Rajni Construction and Developers and ors. ..Respondents. Mr.Navin Parikh with R.R.Haridas and S.D.Rasal for the Appellants. Mr.G.S.Godbole i/by Nitin Muley for the Respondent Nos. 1 to 3. Mr. R.D.Thorat for Respondent Nos. 4(a) to 4(d) Mr.P.J.Thorat for the Respondent Nos. 5 and 6. CORAM : R.S. MOHITE, J. DATE : 23/9/2009 PC: 1 This is an appeal filed by the original plaintiffs. Suit was filed by the plaintiffs in the year 1988 for various declarations and against the grant of commencement certificate. Certain injunction orders were passed in the year 1990, 1991 and 1997 in an A.O. which were operating 2 during the pendency of the suit. The said suit reached the stage of evidence in the year 2008 and at this stage, on 11.3.2008, the plaintiff moved an application alleging breach of the interim orders and made a prayer under Order 39 Rule 2A as well as praying for a striking out of the defence under Order 39 rule 11 of the C.P.C. By the impugned order, the trial court held that the suit was of the year 1988 and was 22 years old, it would be proper to defer the decision on the application till the final hearing of the suit. In this appeal, it is contended that though an order under Order 39 Rule 2A is not appealable, in view of the Maharashtra Amendment to the C.P.C., the order refusing to consider the prayer under Order 39 Rule 11 was appealable and the appeal should be allowed since deferring of the grant of the relief in this regard, would result in the defence, which was sought to be struck off, being considered by the court. In my view, there is no legal infirmity in the impugned order. The allegations regarding the 3 breach of an interim order can arise at at any stage in the suit and even at the stage when the evidence has already been led. Thus, in law, it is open for the parties to file an application under Order 39 Rule 11 for striking of the defence even after the evidence is finally led in the suit and there is no legal impediment in doing so. If any such application is made, it is also open to the trial court to consider even at that stage, if the defence can be struck off. If the defence is struck off then result would be that such issues and such evidence which could not have been arisen or considered if the defence has been struck off at an early stage cannot be legally considered by the trial court. This being the position, even in the present case, after evidence is lead it would still be open for the court to consider the point relating to striking of the defence after evidence is led. If the court comes to the conclusion that the defence is required to be struck off then it is still open to the court to disregard the defence 4 and such evidence which could not have been led on behalf of the defence. In an application under Order 39 Rule 11, very serious consequence can follow and if a violation is proved, the defendants can be put into civil prison. He therefore, has right of cross examination. In such a situation, it is desirable that in stead of leading evidence piecemeal, evidence should be led on all the disputes between the parties including dispute pertaining to the alleged breach of an interim orders. This will prevent an off shoot of an appeal /revision which may arise from any issue being decided as an preliminary issue and would dealy the decision on the main issues relating to the dispute. In this view of the matter, according to me, appeal from order is not required to be entertained and the same is therefore, dismissed. Needless to say that after evidence is led on all the issues including the three additional issues as framed, the trial court will be at the stage of the judgment, first consider the three additional 5 issues and if these issues are decided in favour of the plaintiffs then he will consider which of the remaining issues can be legally considered and decide the these issues by excluding the evidence which could not have been led by the defendants in the absence of their defence. Since the suit has been pending for more than 20-years, hearing of the suit is expedited. 2 In view of the aforesaid order, civil application does not survive and the same is disposed off. (R.S. MOHITE, J.)