1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 454 OF 2008 (Dhondiram Krishnaji Khiradkar vs. Kaluram Govindram Santani) 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. MARCH 16, 2009. Heard Shri Mehadia, learned counsel for the appellant and Shri Kilor, learned counsel for the respondent. The Courts below have concurrently decreed the suit of landlord for eviction of appellant – tenant from a Panpatti shop i.e. betel shop. The grievance before this Court by the appellant is that his counsel withdrew Vakalatnama by filing “no instructions pursis” on 28.4.2003 without serving any notice upon him and hence he could not get opportunity to contest the matter. The reliance is placed upon the judgment of this Court in the case of Govinda vs. Sadu, reported at 2005 (1) Mh. L.J. 651, to urge that the counsel ought to have given a registered notice to present appellant before withdrawing is appearance. It is further stated that earlier a suit vide Regular Civil Suit No. 8 of 1993 2 was filed by the respondent – landlord but that suit was dismissed after holding that termination of tenancy was not proper and thereafter another suit i.e. Regular Civil Suit No. 41 of 1999 came to be filed. It is contended that in the meanwhile, there was compromise between the parties and therefore, tenancy was created by the respondent in favour of the appellant. As the appellant did not receive any notice from his advocate, he could not appear and could not prove the fresh agreement or fresh tenancy. It is also contended that the trial Court also did not issue any notice to the appellant after his advocate withdrew Vakalatnama. Shri Kilor, learned counsel for the respondent – landlord states that Regular Civil Suit No. 8 of 1993 filed after obtaining permission from Rent Controller was decreed ex parte and that decree was maintained in Regular Civil Appeal. The matter was sent back by this Court in order to give an opportunity to the present appellant and thus indulgence has once been shown by this Court in favour of the appellant. He states that the appellant being tenant is deliberately protracting the matter and it is further stated that the appellant has not taken any action against his advocate, who filed “no instructions pursis” on 28.4.2003 and no grievance 3 against the said advocate has been made either before lower appellate Court or before this Court. It is contended that only effort of the appellant is to continue in pan shop as long as possible. The fact shows that after obtaining permission from the Rent Controller, Regular Civil Suit No. 8 of 1993 was decreed ex parte and then the present appellant was given an opportunity and suit was, therefore, restored. As the notice under Section 106 of Transfer of Property Act, was found to be improper, the suit came to be dismissed and after issuing fresh notice, Regular Civil Suit No. 41 of 1999 came to be filed. The appellant is thus fighting for possession after filing Rent Control proceedings and in any case after filing Civil Suit in 1993 for last about 16 years. The perusal of certified copy of order sheet shown by Shri Mehadia, learned counsel shows that examination in chief of the plaintiff was recorded on 7.3.2002 and at the request of counsel for the tenant, the matter was adjourned to 10.3.2003. On 10.3.2002, the plaintiff was not cross examined and the evidence of plaintiff was closed and case was adjourned for evidence of defendant. The case proceeded further and the matter was then adjourned on seven dates and ultimately, the 4 counsel for the appellant – tenant has filed no instructions pursis. He has not withdrawn Vakalatnama and Court has also not permitted him to withdraw Vakalatnama. The Court has only placed endorsement “seen” on said no instructions pursis at Exh. 41. After 28.4.2003 also, the matter was adjourned for judgment to 17.6.2003 and then to 23.6.2003, 2.7.2003, 8.7.2003, 16.7.2003, 22.7.2003, 24.7.2003 and ultimately the judgment came to be delivered on 31.7.2003. The dispute between the appellant and his counsel in these circumstances cannot be allowed to be used to the prejudice of the present respondent. The reliance upon the judgment of the learned Single Judge of this Court in present facts is, therefore, misconceived. I do not find any substantial question of law arising in this Second Appeal. The same is, therefore, dismissed. However, in the circumstances of the case, there shall be no order as to costs. JUDGE *GS.