1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 3008/2009 ( Biharilal Dhannaram Trust and another -versus- Dr. Rajkumar K. Bhiwapurkar and another ) WRIT PETITION No. 3416/2009 ( Shyamsingh Gangashaya Sharma -versus- Dr. Rajkumar K. Bhiwapurkar and others ) ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P. DHARMADHIKARI, J DATED : NOVEMBER 09, 2009 By consent of parties, the matter is heard finally, Shri M.S. Sharma, learned counsel for petitioner Trust, attempts to show that the findings recorded by the lower Appellate Court are not all dealt with by the lower Appellate Court. He states that the lower Appellate Court has itself found that the alleged payment vide Exh.65 on 2.12.2001, has not been proved by respondent no.1. Shri A.S. Kilor, learned counsel while supplementing the arguments of petitioner Trust, states that petitioner Shamsingh has become direct tenant from March, 2001. He states that the licence was changed and and name of establishment was also changed and these material facts are not looked into by the lower Appellate Court. 2 Shri N. Lalwani, learned counsel appearing for original plaintiff in both the matters, points out that the lower Appellate Court has evaluated the evidence and has found that because of his medical practice, the plaintiff was not in a position to look after the day to day affairs, but still he was controlling everything. He contends that change of name of establishment, is therefore not found to be very relevant by the lower Appellate Court. He further argues that payment of Rs. 4 lakhs, to plaintiff as alleged consideration for transfer of tenancy to petitioner – Shayamsingh, is also found to be not established. The suit was for restoration of possession by the present respondent no.1, on the ground of existing tenancy. The lower Appellate Court has found that on 30.03.2001, plaintiff was admittedly the tenant and petitioner Shayamsingh was his Manager. The document considered by the lower Appellate Court for period subsequent thereto is Exh.65 and as per Exh.65, plaintiff has paid rent for period from April, 2001 to March, 2002. Date of Exh.65 is 2.12.2001 and extract of accounts of plaintiffs’ son [Exh.77] shows that on 1.3.2002 the said cheque was encashed. After this finding, lower Appellate Court has noticed that this payment is not reflected in the accounts of the Trust. Therefore, it has not believed the story of payment by plaintiff. However, I find that it has also not considered how non receipt of rent for the period from March, 2001 to March, 2002 was adjusted in its accounts by the Trust. Though the learned counsel have tried to show certain other facts, I find that any observation by this Court at this stage will definitely prejudice the further 3 consideration of the matter by the lower Appellate Court. The lower Appellate Court has recorded a judgment of reversal and its obligation are well settled in view of the judgment of Hon’ble Apex Court reported at 2001 [2] Mh.L.J. 786 (Santosh Hajari .vrs. Purushottam Tiwari). In the circumstances, I find that it will be in the interest of the parties that matter is remanded back to the lower Appellate Court for taking fresh decision in accordance with law, as early as possible. For the said purpose, the impugned order dated 22.04.2009 is quashed and set aside. Regular Civil Appeal No. 428/2008 is restored back to the file of the said Court for taking fresh decision, after giving opportunity to the parties. The said decision be taken as early as possible and in any case by 28.02.2010. Rule accordingly. No costs. JUDGE Rgd.