1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5659 OF 2009. ( Rakesh Gopichand Tayal -: versus :- Krishna Damodhar Deshpande ) 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 : FEBRUARY 02, 2010. Heard Shri R.R. Srivastava learned counsel for petitioner and Shri U.M. Aurangabadkar, learned counsel for respondent. The impugned order is passed by the Adhoc District-2, Nagpur on 05.12.2009 refusing to condone delay of about 420 days in filing appeal under Section 34 of the Maharashtra Rent Control Act. That order is passed in Misc. Civil Application No. 292/2008. Shri Srivastava, learned counsel for petitioner contends that out of this period, the period of 170 days is spent in prosecuting different remedies before the Small Cause Court. He further states that the judgment and decree passed by the Small Cause Court is ex-parte and to have it set aside, M.J.C.No.16/2007 was filed by the petitioner, which was being prosecuted diligently. Dismissal of that M.J.C. for want of prosecution was not communicated to the petitioner 2 by his counsel and hence further steps could not be taken within time. When the warrant of possession came to be issued in Execution Proceedings, petitioner learnt that his M.J.C. has been rejected and hence, he filed Misc. Civil Application No. 292/2008 with prayer to condone the delay. During arguments, he has also stated that the petitioner has deposited all rent till date at undisputed rate of Rs. 1700/- per month, and petitioner has a deaf and dumb child. He therefore states that the petitioner deserves to be given opportunity to contest the matter on merits. As against this Shri Aurangabadkar, learned counsel appearing for respondent points out that before M.J.C.No.16/2007, M.C.A.No. 60/2006 was filed by the petitioner and it was dismissed as there was no compliance with Section 17 of the Provincial Small Cause Court Act. He further states that in execution proceeding filed by the respondent / landlord vide S.D.No.164/2006, one Prakash Chainamal Meghani has raised objection claiming to be a person in occupation because of sub-tenancy created in his favour by the petitioner. The petitioner himself had vide Exh.21, filed an application for taking suitable action against the decree holder in that S.D., and that application of petitioner was dismissed on 11.02.2008. According to him, when the petitioner was aware of execution proceeding, his contention that he was not aware of the dismissal of M.J.C.No.16/2007 cannot be accepted. He contends that the respondent / landlord is about 84 years old and in these circumstances, as there are no bonafides the order passed by the lower Appellate Court needs to be maintained. Shri Srivastava, learned counsel in reply has 3 pointed out that provisions of Section 17 of the Provincial Small Cause Court Act were not applicable and he has further relied upon the judgment of Hon'ble Apex Court reported at 2010 [1] SCC 391 (Ramkumar Gupta and others .vrs. Harprasad and another) to urge that lawyers error cannot be used to deny a fair trial to the petitioner. With the assistance of both the learned counsel I have perused the papers. The fact show that the exparte decree was within the knowledge of petitioner and he had therefore filed M.J.C.No.60/2006. Dismissal for want of prosecution of that M.J.C., was not questioned and thereafter another M.J.C. Vide 16/.2007 was filed. That M.J.C. was within the knowledge of the petitioner and grievance that dismissal of later M.J.C. was not informed to him, does not appear to be substantiated as the name of lawyer who represented the petitioner or who allegedly did not inform that dismissal is not disclosed. The M.J.C.No.16/2007 has been dismissed on 09.04.2007. In any case the execution proceeding vide S.D.No.164/2006 were going on simultaneously and the present petitioner has moved an application therein on 18.12.2007 vide Exh.21, which came to be dismissed on 11.02.2008. Thereafter, the present M.C.A. has been filed on or about 24.03.2008. The sequence therefore clearly shows that petitioner was aware of all the developments and was watching the same and has taken appropriate steps to delay the disposal of the execution proceedings. In the circumstances, it is not possible for this Court to accept the contention that lawyer of petitioner did not inform the disposal of M.J.C.No. 16/2007 to him. In 4 view of this finding, the judgment of Hon'ble Apex Court relied upon by the petitioner is not relevant in the present matter. Writ Petition is therefore dismissed, with no order as to cost. Considering the circumstances, the interim relief which protects the petitioner is continued till 03.03.2010. The interim order shall cease to operate automatically thereafter. JUDGE Rgd.