1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 3223/2010. DeoraoRamkrushnaji Jivtode and another. -: VERSUS :- Sheshrao Kisan Khandagale Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : SEPTEMBER 09, 2010. Heard Shri R.R. Johrapurkar, learned counsel for petitioners and Shri B.B. Mehadia, learned Counsel for respondent. Rule, made returnable forthwith with consent of parties. Appellate Court has found that looking to the nature of the controversy the questions were required to be answered by the Trial Court. Those questions are :- “(i) Whether the appellant was in arrears of rent from October, 2003 ? (ii) Whether the respondents issued the demand notice calling upon the appellant to pay the rent ? 2 (iii) Whether the appellant failed to pay the rent within 90 days from the receipt of notice ? (iv) Whether respondents filed the suit without waiting for expiry of statutory period of 90 days, and (v) Whether they have the cause of action to seek the possession on the ground of non-payment of rent ? (vi) Whether greater hardship would be caused by passing the decree to the tenant than by refusing to pass it to the landlord ?” The Appellate Court has also found that only two questions were answered by the trial Court and there was no answer to remaining questions. According to the learned Counsel for petitioners / landlord, remand made by the Appellate Court to the Trial Court for seeking answer to those allegedly unanswered questions, is improper. Those questions also stands answered by the trial Court and there is enough material on record to show this. He points out that those questions can be looked into and adjudicated upon by the Appellate Court itself on merits. Shri Mehadia, learned counsel states that the Appellate Court has in its wisdom and after noticing that in order to avoid any prejudice and to have a finding from the trial Court, remanded the matter back. He states that if the petitioners have no objection to accept the material on record as it is, and to proceed further on merits before the 3 Appellate Court itself, the respondent has also no objection. After hearing the respective counsel, I find that the petitioners/landlord are ready and willing to proceed further with the hearing of the appeal on merits on the strength of material already available on record, and he is not seeking leave to produce any other material. It is therefore, obvious that no prejudice what so ever is caused to the respondent in the matter, if appellate Court itself attempts to answer the unanswered questions as per law. In this view of the matter, the impugned judgment of remand dated 13.04.2010 is quashed and set aside. The Regular Civil Appeal No. 39/2010 is restored back to the file of Appellate Court i.e. the Extra Joint District Judge-2, Nagpur and the said Court is directed to take up the matter for fresh decision on all the questions on merits and in accordance with the law. Parties to appear before the learned Appellate Court on 30.09.2010 and to abide by its further directions in the matter. Writ Petition is accordingly allowed. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE Rgd.