1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 4513/2008 (Dhananjay Bhide Vs Haribhau J. Naik & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. R.D. Damle, Adv. for petitioner. Mr. Vandan Gadkari, Adv. for R-1. CORAM : Smt. Vasanti A. Naik, J. DATED : 21 st OCTOBER, 2008. By this petition, the petitioner impugns the order passed by the Judge, Small Causes Court, Nagpur, on 29th March, 2005, in Regular Civil Suit No. 53/2001, as also the common judgment passed by the District Judge-1, Nagpur, on 11th August, 2008, in Regular Civil Appeal No. 399/2005 and Regular Civil Appeal No. 537/2007 filed by the respondent no.2 and the petitioner respectively. The respondent no.1 had filed a suit against the petitioner and the respondent no.2, for a decree for possession and recovery of arrears of rent. It was the case of the respondent no.1 that he was the absolute owner of the suit property and the suit property was given to the defendants on rent in terms of the agreement dated 3/12/1994. Since the defendants were neglecting and avoiding to pay the 2 arrears of rent, proceedings had been initiated by the respondent no.1 against the defendants in the Court of the Rent Controller. The defendants denied the claim of the plaintiff by filing a written statement. It was pleaded by the defendants that the present petitioner was not a proper party because he was not personally a tenant of the plaintiff. It was pleaded that insertion of his name as defendant no.2 was unwarranted as no cause of action arose against him. The defendants sought for the dismissal of the suit. On considering the evidence tendered by the parties on record, the Court of Small Causes, Nagpur, decreed the suit of the respondent no.1 and directed the defendants to hand over the possession of the suit property to the plaintiff and further directed them to pay the arrears of rent. During the pendency of the appeal filed by the defendants against the judgment passed by the Court of the Small Causes, the possession was delivered by the defendants to the plaintiff. The first appellate Court, on hearing the learned counsel for the parties, dismissed the appeals filed by the defendants. Both the orders are impugned in the instant writ petition. Shri R.D. Damle, the learned counsel for 3 the petitioner, submitted that both the Courts committed a serious error in passing a decree for recovery of rent against the petitioner/defendant no.2 as the defendant no.2 had ceased to be a Director of the Company on the date of passing of the decree. It is further submitted on behalf of the petitioner by relying on a decision reported in 2002 (2) Mh.L.J. 36, that the Director of the Company who has already tendered his resignation, cannot be held liable for the attachment of his personal property. Shri Gadkari, the learned counsel for the respondent no.1, supported the judgment passed by both the Courts and submitted that there was no evidence on record whatsoever to show that the petitioner had resigned from the Company and an adverse inference ought to have been drawn against the petitioner for not entering the witness box. The counsel for the respondent no.1 sought for the dismissal of the petition. I have perused both the judgments and have also perused the reported judgment in the case of Saumil Dilip Mehta Vs. State of Maharashtra & ors relied on by the counsel for the petitioner. It is conspicuous to note that in the instant case, apart from filing the written statement and raising a preliminary objection, the petitioner did nothing in 4 the matter. The petitioner had failed to enter into the witness box or produce any documentary evidence before the trial Court to show that he had ceased to be the Director of the Company. A miscellaneous civil application was filed by the respondent no.2 before the first appellate Court stating therein that the petitioner was no more the Director of the Company. Mere filing of the miscellaneous civil application was not enough to hold that the petitioner had tendered his resignation as a Director of the Company and he was not liable to pay the arrears of rent to the respondent no.1. The judgment reported in 2002 (2) Mh.L.J. 36 cannot be made applicable to the facts of the case. Moreover, in this case, the petitioner is not challenging the order of attachment of his salary and is challenging the judgments passed by both the Courts. In the absence of any evidence, worth the name, to show that the petitioner was not a Director of the respondent no.2- Company at the relevant time, no fault can be found with the judgments passed by both the Courts fastening the liability on the petitioner and the respondent no.2, to pay the arrears of rent. The alleged agreement entered between the parties on 3rd December, 1994 would also be of no assistance to the case of the petitioner 5 as the agreement was signed by the petitioner as a legal power of attorney holder and the Director of the respondent no.2- Company. The power of attorney further showed that the petitioner was Director of Operations and Administration and had an authority to sign all the necessary documents and represent the Company in relation to all the matters stated in the documents. There is no error whatsoever in the judgments passed by both the Courts much less a jurisdictional error so as to exercise the extraordinary jurisdiction under Article 227 of the Constitution of India. The writ petition is, therefore, dismissed with no order as to costs. JUDGE RMP