1 WP 525/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 525 OF 2011 Doodhnath Lalta Prasad Pandey .. Petitioner V/s 1. Linus Nicholas D’Souza 2. Zuber Ahmed Siddique .. Respondents Mr. K.R. Tiwari i/b K.R. Tiwari & Co. for the petitioner. Mr. V.E. Pareira for the respondents. CORAM : D.G. KARNIK, J. DATE : 21ST FEBRUARY 2011 P.C. : 1. Heard learned counsel for the petitioner. 2. This petition is directed against a judgment and order dated 30th July 2010 passed by the appellate Bench of the Small Causes Court, Mumbai, setting aside an order of the trial Court allowing the motion of the petitioner for setting aside the exparte decree. 3. The respondent no.1 is the landlord and the petitioner is the tenant. The respondent no.1 filed a suit bearing R.A.E. & R 2 WP 525/2011 Suit No. 543/1012 of 1999 against the petitioner and another for eviction under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short “the Bombay Rent Act”). In the suit, an exparte decree for eviction was passed by the trial Court on 3rd February 2001. The petitioner was dispossessed on 27th August 2001 in execution of the decree. The respondent no.2 was then inducted in the premises. On 5th September 2001, a constituted attorney of the petitioner filed an application for setting aside of the exparte decree and restoration of the suit under Order 9 Rule 13 of the Code of Civil Procedure on the ground that the suit summons was not duly served on the petitioner. The trial Court accepted the contention of the petitioner and restored the suit to file. However, on appeal the appellate Bench of the Small Causes Court allowed the appeal and held that the suit summons was properly served and no sufficient cause was made out for absence of the petitioner. That order is impugned in the present petition. 4. Whether the suit summons was properly served on the petitioner is purely a question of fact. The appellate Court is a final fact finding Court. In the absence of any perversity, a finding of fact cannot be reopened in exercise of extraordinary 3 WP 525/2011 jurisdiction under Article 227 of the Constitution of India. 5. There is one more reason for not entertaining the present writ petition. This petition has been filed in the name of the petitioner by one Ramawadh Nagina Yadav claiming to be the constituted attorney of the original tenant, i.e. the petitioner. The application for setting aside the exparte decree and restoration of the suit was also signed by the said constituted attorney himself and was not signed and verified by the petitioner. The petitioner also did not enter the witness box nor did he file his own affidavit, but the entire proceedings appear to have been conducted by the constituted attorney. Copy of the power of attorney dated 1st October 1999 is annexed to the writ petition and it clearly indicates that the original tenant (the petitioner) has transferred his interest in the suit property to the attorney and the petitioner is no longer interested in the premises. Paragraphs 1 and 11 of the power of attorney read thus: “1. To use and occupy the said premises and get the tenancy created in the name of my said attorneys and for that to sign such writings as my said attorneys shall think fit and proper. 4 WP 525/2011 11. To institute any proceeding/s against any person or persons for protecting the interests of my said attorneys and sign such writings that may be required to be signed and executed for protecting the interests of my said attorneys vested in the said premises and business.” (underlining supplied) Reading of the power of attorney as a whole and in particular clauses (1) and (11) thereof makes it clear that the petitioner tenant has no interest left in the suit premises and he even authorised the attorney to get the tenancy transferred in the attorney’s name. This is yet another reason for not entertaining the writ petition. The writ petition is accordingly rejected. (D.G. KARNIK, J.)