1 (WP3690.96) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3690 OF 1996 Nasir Abdul Majid Sheikh ...Petitioner. V/s Mohamed Hanif Mohamed Hussain Burhan ....Respondent. Mr. K.K. Malphatak for the Petitioner. None for the Respondent. CORAM: V. M. KANADE, J. DATE : 7th June, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner. None appears on behalf of the Respondent though he is served. 2. Petitioner is the original tenant and Respondent is the original landlord. For the sake of convenience, parties shall be 2 (WP3690.96) referred to as “landlord” and “tenant”. 3. Landlord filed a suit for eviction on various grounds under the Rent Act. However, in spite of service of summons, the tenant remained absent and, therefore, ex parte decree was passed by the Trial Court. Appeal was preferred against the said ex parte decree and there was delay of almost 10 months and few days. Ex parte decree, in the meantime, was executed and possession was obtained by the landlord. The lower Appellate Court held that the delay was not properly explained and, therefore, refused to condone the delay in filing the appeal and, therefore, the appeal was dismissed. Being aggrieved by the said order, the tenant has preferred this Petition under Article 227 of the Constitution of India. 4. The learned Counsel appearing on behalf of the Petitioner submitted that a similar Petition was filed against the Respondent by another tenant. He submitted that, in the said case also, ex parte decree was passed and the ex parte decree was executed. He submitted that this Court in Writ Petition No.2662 of 1996 by judgment and order dated 20/1/1998 was pleased to set aside the order of the lower Appellate Court and was pleased to condone the delay and also a direction was given to the lower Appellate Court to decide the appeal of the tenant. It is submitted that the facts of the said case and the present case are identical. 3 (WP3690.96) 5. I have gone through the judgment and order of the learned Single Judge. I have also perused the order passed by the lower Appellate Court. In my view, lower Appellate Court has taken a technical view of the matter and has not taken into consideration the affidavit filed by the tenant. The impugned order, therefore, will have to be set aside. Delay caused in filing the appeal will have to be condoned. Petitioner, however, shall undertake to this Court that he will not apply for restoration of possession in the event the ex parte decree is set aside. In the event ex parte decree is set aside, the Trial Court shall dispose of the suit expeditiously within a period of one year. 6. In the result, the Petition is allowed. The order dated 20/2/1996 passed by the 3rd Additional District Judge, Thane in Misc. Application No.102 of 1984 is set aside. Delay in filing the appeal against the ex parte decree is condoned. The lower Appellate Court is directed to hear and dispose of the appeal on merits. Petitioner shall give an undertaking to the lower Appellate Court that he shall not insist upon restoration of possession of the suit premises in case the ex parte decree is set aside in appeal by the lower Appellate Court and, therefore, in that case, the lower Appellate Court shall not be called upon to make an order of restoration of possession if it sets aside the ex parte decree. However, if the ex parte decree is set aside, the lower Appellate Court shall make an order directing the landlord not to create any third party rights 4 (WP3690.96) in the suit premises and not to hand over possession to anybody during pendency of the suit, if the third party rights are not already created. 7. Rule is made absolute accordingly in the aforesaid terms. (V.M. KANADE, J.)