1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR LETTERS PATENT APPEAL NO. 562/2009 IN WRIT PETITION NO. 5035 OF 2009 (D) (Pandharinath Vithobaji Neware ..vs.. Chandrashekhar Manohar Tanksale) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Shri S.P.Bhandarkar, Advocate for the Appellant CORAM : A.H.JOSHI & A.R.JOSHI, JJ. DATED : DECEMBER 10, 2009. (Per A.R.Joshi, J.) 1. Heard learned Advocate Shri S.P.Bhandarkar for the appellant at length. 2. The present appellant-original defendant has challenged the order dated 26/11/2009 passed by the learned Single Judge of this Court in Writ Petition No. 5035/2009. 3. Certain factual position as to the conduct of the parties and passing of different orders, can be mentioned as under. 4. Regular Civil Suit No. 473/2002 was filed by the original plaintiff-present respondent. Possession of the premises was sought under Section 16(1)(a), (c) and (g) of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as ‘Rent Act’ for the sake of brevity). 5. In the said suit due to failure in depositing the arrears of rent as directed by the trial court, the defence of present petitioner- 2 defendant was struck off on 18/4/2006. 6. Though, defence was struck off and though there was no barrier to proceed for the cross-examination of the plaintiff, the defendant did not cross-examine the plaintiff-landlord and his witnesses. Plaintiff’s plea and evidence went uncontroverted. Consequently, believing the case of the plaintiff, decree was passed on 27/11/2006 and the present appellant-defendant was directed to deliver vacant possession of the suit premises to the plaintiff by 31/12/2006. 7. Feeling aggrieved by the decree for eviction, the defendant-tenant preferred a Regular Civil Appeal No. 207/2007. In the appeal, arrears were deposited in the appeal court. The said appeal was dismissed by the Ad-hoc District Judge-2, Nagpur, maintaining the eviction decree passed by the trial Court. 8. The decision in appeal was challenged before learned Single Judge of this Court in Writ Petition No. 5035/2009. The order dismissing said writ petition is challenged in present LPA by the original defendant-tenant. 9. It is the factual position that the arrears of rent were not paid before the trial court. Cause for such non-compliance was alleged as failure on the part of the learned Advocate to communicate the order of deposit to the defendant-tenant. 10. On this factual position as to merits of decree for eviction, it is argued on behalf of the present appellant that the first appellate court was duty bound to look into the grounds raised by 3 the tenant and permission should have been given for cross- examination of the landlord. 11. We have gone through the reasoning given by the learned Single Judge, who has found as per the submission on behalf of the respondent-landlord that during 18/4/2006 to 27/11/2006, no steps were taken by the tenant and that opportunity given by the trial court for cross-examination of the landlord was not availed and as such now such grievance cannot be made. 12. Had the tenant availed of the opportunity to cross- examine, defendant could have exerted to prove that plaintiff’s witness are not worth credit, and essential ingredients of plaintiff’s case were not proved. 13. Had said exercise of cross-examination been availed by the defendant impairment which he had suffered could have got mitigated, and he could have secured even ultimate success. 14. After going through the reasoning given by the learned Single Judge of this Court, apart from what we have observed, we find that there is nothing to interfere with the impugned judgment in the present Letters Patent Appeal. 15. In the result, the present Letters Patent Appeal is dismissed, however, with no order as to costs. JUDGE JUDGE Diwale