1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4530 OF 2010 (Ramesh Govardhandas Agrawal vs. Shri Gopal Bhagirath Rathi & Ors.) with WRIT PETITION NO. 4531 OF 2010 (Ramesh Govardhandas Agrawal vs. Shri Gopal Bhagirath Rathi & Ors.) 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. DECEMBER 07, 2010. Heard Shri Madkholkar, learned counsel for the petitioner, Shri Kulkarni, learned counsel for respondents No. 1, 3, 4 & 5 and Shri Parsodkar, learned counsel for respondent No. 6. The petitioner claims to be an independent tenant and has challenged the judgment and decree delivered by Small Causes Court in proceedings instituted by landlords (Respondents No. 1, 3, 4 & 5) against their tenant (Respondent No.6) by filing appeal before the District Court. The appeal has been filed after delay of about 240 days and proceedings for condoning it are still pending. Respondent No. 6 – tenant had filed appeal independently challenging the very same judgment and decree of Small Causes Court within time. That appeal has been decided by judgment dated 01.04.2010 and judgment and decree of trial Court has been upheld. The present petitioner was also party in that appeal and 2 he has not appeared in those proceedings. The appellate Court has while dismissing the appeal on 01.04.2010 made an observation that as present petitioner (Respondent No.6 in that appeal) has failed to establish his independent tenancy, decree passed in the suit will be binding upon him. Shri Madkholkar, learned counsel has challenged this observation in para 28 with contention that said Court earlier found service of notice itself in appeal unnecessary and hence the petitioner could not appear in those proceedings. The learned counsel states that as the petitioner was not given any opportunity in that appeal, findings recorded therein cannot conclude the fate of appeal filed by the petitioner. According to Shri Kulkarni, learned counsel, the petitioner was a sub-tenant of present Respondent No. 6 – tenant and he deliberately did not participate in proceedings before Small Causes Court. The appeal by said sub-tenant has been filed on 14.03.2010 while judgment has been delivered by appellate Court on 01.04.2010 in Tenant's appeal. He states that there is delay of about 210 days in the matter. He also accepts that findings recorded in para 28 cannot per se decide the fate of appeal preferred by the petitioner and the appellate Court will be required to hear him and take appropriate decision. In present situation, it is apparent that findings recorded in para 28 cannot operate to the 3 prejudice of present petitioner and he has to establish his status and right in appeal filed by him. The appellate Court has to examine the tenability of that appeal along with other grounds in accordance with law. As Respondents No. 1, 3, 4 & 5 (landlords) have fairly stated that findings by itself do not seal the fate of present petitioner, it is apparent that the petitioner has not been prejudiced in any manner. The petitioner is, therefore, free to advance his arguments before the appellate Court and appellate Court is free to consider it in accordance with law. In view of this position, writ petitions are disposed of with no order as to costs. JUDGE *GS.