Digambar Vanji Mali vs Kisan Khandu Chaudhar
2001 Latest Caselaw 576 Bom

JUDGMENT

A. M. Khanwilkar, J.

1. This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the District Judge, Dhule dated 27th June, 1989 in Civil Appeal No. 344 of 1989. Both the parties consent to proceed with the hearing of this petition before the Bombay Bench, though it pertains to Dhule District.

2. The petitioner is a tenant in respect of the premises situated within the Municipal limits of Deopur Lane No. 10 of Dhule admeasuring about 15'

x 10' consisting of one room on monthly rent of Rs. 30/- and other taxes. The respondent-landlord issued demand notice to the petitioner calling upon him to pay the arrears of rent for a period between October, 1982 till the demand notice dated 28.8.1983. According to the respondent, since the petitioner did not offer the amount demanded in the said notice within the specified time of one month, the respondent instituted a suit for recovery of possession on the ground of default within the meaning of section 12 of the Bombay Rent Act. Besides the ground of default, the respondent also claimed for recovery of possession on the ground that the petitioner has committed an act of nuisance and annoyance to the neighbours and adjoining occupiers. The Trial Court after considering the rival stand proceeded to decree the suit on both the counts vide order dated 30th June, 1984. The petitioner carried the matter in appeal before the District Court, Dhule being Civil Appeal No. 344 of 1984. It appears that during the pendency of the said appeal the Advocate for the petitioner filed pursis of no instructions and consequent to which notice was issued by the Court. Thereafter the petitioner engaged another Advocate. However, it is stated that, when the matter was taken up for hearing before the Appellate Court, the said Advocate did not remain present. Moreover, since the petitioner was not aware of the date of hearing even he did not attend the Court. The Lower Appellate Court however, proceeded to decide the appeal on merits and dismissed the same by order dated 27.6.1989. It is this order which is subject matter of challenge in the present writ petition.

3. Since indubitably the Appellate Court has decided the matter on merits by the impugned order in absence of the petitioner or his Advocate, such an order cannot be sustained in law. It is well settled that if the Appellant or his Advocate is absent then the Court would at best, dismiss the appeal for non-prosecution, but ought not to decide the same on merits, This proposition is no more res Integra. The Apex Court in the case of Abdul Rehman and Ors. v. Athifa Begum and Ors., has taken this view. In the circumstances, instead of going into merits of the rival contentions, the appropriate course open for me is to set aside the order under challenge and remand the matter to the Appellate Court for rehearing of the appeal in accordance with law.

4. The learned counsel for the respondent, however, submits that since the matter is pending in this Court from the year 1989; and that the suit was filed by the respondent as back as in 1983; it would cause serious miscarriage of justice to the respondent-plaintiff if the matter is remanded to the Appellate Court at such a belated stage on such technical ground. He submits that, after going through the pleadings and the evidence on record, the correctness of the findings returned by the Courts below cannot be doubted. Therefore, according to him. this Court should examine the matter itself instead of remanding the same to the Appellate Court. I am afraid, the scope of interference in writ jurisdiction under Article 227 is very limited, for it is not open for this Court to re-appreciate the evidence on record and to substitute its own findings just because another view is also possible. A fortiori, although the grievance made on behalf of the respondent is quite genuine, yet I would not venture to examine the matter by

reappreciating the record in exercise of writ jurisdiction. Such an exercise would tantamount to limiting the remedy of a regular appeal available to the petitioner.

5. The learned counsel for the respondent is justified in making a grievance that the inevitable consequence of remanding the matter to the Appellate Court is requiring the respondent to undergo the rigmarole of proceedings before the Appellate Court and thereafter in all possibility once again before this Court. According to him from the materials on record it would appear that all this would be an exercise in futility for the petitioner has no case on merits. He submits that instead, the respondent would not mind in giving sufficient time to the petitioner to vacate the suit premises, even upto a period of two years. The learned counsel for the petitioner however, submits that the petitioner would like to take a chance before the Appellate Court, for according to him, the Trial Court has clearly misdirected itself in recording finding on both the issues. In view of the aforesaid submissions, it is made clear that, since the petitioner wants to take a chance before the Appellate Court, he may do so provided that the petitioner shall not ask for time to vacate in the event the Appellate Court confirms the decree. The learned Counsel for the petitioner assures that the petitioner will not ask for time to vacate if the Appellate Court confirms the decree passed by the Trial Court. This assurance is accepted.

6. For the aforesaid reasons this petition succeeds. The impugned order is set aside and the matter is remanded to the District Court, Dhule for reconsidering the appeal on merits in accordance with law including the question whether the petitioner has shown sufficient cause for the absence on 27.6.1989 before the Appellate Court. The Appellate Court shall decide the appeal expeditlously and in any case not later than three months from the receipt of writ of this order. Rule made absolute in the above terms with no order as to costs.

Parties to act on the copy of the order duly authenticated by Sheristedar of the Court.