1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4391 OF 2009 ( Pandharinath V. Neware . -: versus :- Chandrashekhar M. Tanksale ) 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 : NOVEMBER 26, 2009. Heard Shri S.P. Bhandarkar, learned counsel for petitioner-tenant and Shri V.V. Bhangde, learned counsel for respondent-landlord. In Regular Civil Suit No. 473/2002 for not depositing the rent as directed, defence of present petitioner was struck off on 18.04.2006. He thereafter, did not cross examine the landlord or his witness and ultimately on 27.11.2006 a decree came to be passed directing petitioner to deliver vacant possession by 31.12.2006. The possession was sought under Section 16[1][a][c] and [g] of the Maharashtra Rent Control Act, 1999. Petitioner – tenant then preferred Regular Civil Appeal No.207/2007, pending before the Adhoc District Judge -2, Nagpur and said court on 13.07.2009 has dismissed the appeal and maintained the order of Trial Court. Shri Bhandarkar, learned counsel for petitioner in this background states that, order requiring petitioner to 2 deposit rent was not communicated by his counsel to petitioner and hence it remained un-complied. However, after filing of appeal, suit amount of rent was deposited in Appellate Court and it was accepted by that Court. Because of this payment, the Lower Appellate Court was duty bound to look into the grounds raised by the petitioner assailing the circumstances in which the defence was struck of and also at least could have permitted the petitioner tenant to cross examine the plaintiff and his witness. He relies on the judgment reported at [1988] 4 SCC 619 (Modula India .vrs. Kamakshya Singh Deo), to urge that such provision needs strict interpretation and the right of petitioner – tenant to protect himself, therefrom, has been violated in the present matter. He contends that defence taken in written statement and the grounds raised in appeal memo are lost sight of by the Lower Appellate Court and thus there is failure to exercise jurisdiction. Shri Bhangde, learned counsel for respondent, states that after 18.04.2006 till 27.11.2006 no steps were taken by the petitioner- tenant and reasons therefor are not explained. He further argues that the judgment of Hon’ble Apex Court is not applicable in the present circumstances, and petitioner was given opportunity to cross examine the respondent, but that opportunity was not utilized. The facts show that after 18.04.2006 present petitioner has not disclosed steps taken by him till 27.11.2006 i.e. the date on which the Small Causes Court delivered final judgment. When he learnt about the order dated 18.04.2006 and when he learnt about the final judgment, how he could not contact his counsel till 3 27.11.2006, are the relevant questions which ought to have been answered by the present petitioner to show his bonafides. After the delivery of the impugned judgment within time Regular Civil Appeal has been filed and while filing the appeal the amount ordered by the trial Court was deposited. Again in the said appeal memo the steps taken during the above mentioned period to reveal bonafides of petitioner are not brought on record. Even before this Court, those steps are not pointed out and this Court therefore is not in a position to look into the bonafides or otherwise of the conduct of the present petitioner in the matter. Opportunity to cross examine the respondent / plaintiff was given to the petitioner and admittedly it was not utilized. In this circumstances, the evidence available before the trial Court was, affidavit of plaintiff and that evidence has been acted upon by it, as also by the Lower Appellate Court. As the defence was struck off and as petitioner did not examine any of his witness, his written statement or then defence available to him could not have looked into and has not been looked into by any of the Courts. There is no explanation why his counsel or he could not cross-examine plaintiff. Suit for eviction was pending since 2002 and I find that some vague allegations are being made against some counsel without naming him only to protract the litigation. Perusal of the judgment of the Hon’ble Apex Court referred above, reveals that the Hon’ble Apex Court has found that the provisions of such a nature striking off the defence of tenant need to be viewed strictly and ultimately it has found that such tenant needs to be given right to cross examine the landlord and his witnesses. The said right is 4 already given to the present petitioner by the trial Court. I, therefore, find that the said judgment has no application in the present facts. No case is made out warranting interference in writ jurisdiction. Writ Petition is therefore dismissed. No costs. At this stage, learned counsel for petitioner states that petitioner is in possession and the said possession should be protected till 10th November, 2009. The request is being opposed by the learned counsel for respondent. However, in the interest of justice, possession of petitioner is protected for a period of two weeks and interim protection granted, shall cease to operate automatically. JUDGE Rgd.