1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.11 OF 2009 Lalchand S/o.Keruba Jungade, (Died) Through LR’s. APPLICANTS VERSUS Mohammed Raisoddin S/o.Rafikoddin RESPONDENT Mr.R.N.Dhorde h/f. Mr.V.R.Dhorde, learned counsel for applicants. Mr.A.S.Deshpande, learned counsel for respondent. (CORAM : A.V.POTDAR, J.) DATE : 19/04/2010 PER COURT : 1. By the present civil revision application, the applicants/original tenants in Rent Eviction Application no.1991/ RC/CR-3, have assailed the judgment and decree in Appeal No. 2/2008, dated 19/01/2009, which was preferred against the order of Rent Controller in the said rent application dated 31/03/2008. 2. Heard learned counsel for revision applicants followed by the submissions of learned counsel for respondent. The small issue involved in this revision application is that while passing the order of eviction in Rent Eviction Case No.1991/RC/CR-3, dated 31/03/2008, opportunity was not given to the applicants, which cause prejudice 2 to their rights to defend the litigation. 3. Considering the submissions across the bar, the relation between the predecessor of applicant Lalchand and the respondent to this petition is of Landlord and Tenant, is not under dispute. The present respondent landlord has acquired the property under the registered sale deed from the previous landlord in the year 1985 is also not under dispute, as well as the agreed rent is @ Rs.125/- per month is also not under dispute. It appears that respondent landlord has filed an eviction application before the Rent Controller, Jalna on 3 grounds, i.e. willful defaulter about payment of rent, about subletting of the suit premises on rental basis and for bonafide requirements. It appears that the said application was contested by the predecessors of the present applicant by filing the written statement to that effect. As the application was filed in the year 1991, but there was no fruitful results, it appears that the present respondent had filed Writ Petition No.1321/2007 for seeking directions to be given to the Rent Controller for expeditious hearing of the said application, which writ petition came to be allowed on 20/06/2007. It appears that the said order passed in the writ petition by this Court was communicated to the Rent Controller and then the ball was put in motion for the further proceedings in the said application. 4. During the course of submissions across the bar, my attention was drawn towards the record and proceeding received from the 3 Lower Court, as well as from the First Appellate Court, comprising the Roznama of the Lower Court. Attempts are made to point out that even though the litigation before the Lower Court was protracting from the year 1991 till the year 2008, but was not at the fault of the parties to the litigation. The judicial work to decide the application for eviction under the Hyderabad Rent Control Act was assigned to the Revenue Officer. As per time permitted to do this judicial work, these officers are functioning ands due to that the litigation was protracted. It is also brought to the notice that in this application, the issues were framed on 22/03/1994 and till the order was passed in Writ Petition no.1321/2007, the parties were regularly attending the Court of Rent Controller from the year 1991 to 2007. It appears that examination in chief of the present respondent was recorded somewhere in the year 2001, and since then it was waiting for cross examination at the hands of predecessor of the present applicants. 5. The noting further shows that after writ of the order was passed by this Court was received by the Rent Controller i.e. The S.D.O. Jalna, parties appeared before the Rent Controller and thereafter earlier counsel appearing for the predecessor of present applicants was changed and new counsel was appointed on their behalf, which fact find place from the roznama dated 23/07/2007. After the counsel was changed, an application was moved for the cross examination of present respondent. It appears that at the request of learned counsel for applicants, the date was fixed on 4 16/10/2007, then it is adjourned to 23/10/2007. On these dates, counsel for present applicant and applicant were absent hence the matter was adjourned to 30/10/2007. On that day, again the matter was adjourned at the request of counsel for present applicants. The noting further shows that on 15/12/2007, again last chance was given to conclude the cross examination of respondent, who is applicant before the Rent Controller, but as it was not concluded, it is adjourned to 01/01/2008. On 01/01/2008, the counsel for applicant was absent and hence again moved an application for concluding the cross examination, but it appears that thereafter, neither the counsel for applicant nor applicant appeared before the Rent Controller. In view of this, there was no further cross examination of the evidence given by the respondent herein before the Rent Controller. As there are directions from this Court to dispose of the application as expeditiously as possible, in view of the orders dated 20/06/2007, in writ petition no.1321/2007, after waiting for sufficient time, the Rent Controller heard the submissions of learned counsel for respondent, who is applicant before the Trial Court and pronounced the judgment vide order dated 31/03/2008. 6. This judgment is challenged in Reg.Appeal No.2/2008 before the District Court, Jalna, who by way of judgment and decree dated 19/01/2009, pleased to dismiss the appeal, which order is impugned in this revision application. 7. During the course of submissions across the bar, it is urged 5 that after fighting the battle for the period of more than 17 years, if on some occasions, the predecessor of the applicants remain absent, and in his absence, without giving proper opportunity to cross- examine the witnesses of the respondent, the order of eviction was passed on 31/03/2008, which is against the principle of natural justice. It is also contended that the applicant was under the bonafide impression that the Presiding Officer is transferred and the post of the Rent Controller is vacant, hence he has not attended the Court under that bonafide belief. 8. These submissions require to be considered in the light of facts before this Court by way of Roznama of the proceedings before the Rent Controller. It appears that after the appearance of the new counsel filed before the Rent Controller, the counsel has appeared on two occasions only and after January 2008, he has not attended the Court. Sufficient opportunity was given to conclude the cross examination, but for one or other reason, the predecessor in title of the applicant and his counsel preferred not to participate in the proceeding, as a result the respondent was not cross examined. Considering the relevant dates from the Roznama received from the Trial Court, it can not be said that Rent Controller is at fault and the liberty was denied to the applicant or applicant’s counsel to cross examine the witnesses of respondent. At the same time, it is not the case that the opportunity was not given to cross examine the witnesses, but in this case, no submissions were preferred before the Rent Controller, who had passed the order of eviction against the 6 predecessor of applicants. Considering all these aspects, it can be said that the opportunity given to the applicant was not availed by the counsel for applicant, and in the premise, the Rent Controller can not be faulted in passing the order dated 31/03/2008. On perusal of the judgment of First Appellate Court, it reveals that all these facts are considered and discussed in detail. In the premise, I find no fault with the judgment and order passed by the First Appellate Court which require any interference at the hands of this Court. 9. Before parting with the judgment, it is necessary to consider the submissions about the order passed by the Rent Controller on merit. It is tried to urge across the bar that the reasoning given by the Rent Controller about the bonafide requirements of the respondents are not tenable in Law. The fact remains that the facts pleaded by the respondents in his application for eviction before the First Court, even though challenged by way of written statement, but the evidence given by respondent/original applicant is not rebutted by cross examination, in other words, remain unchallenged and if the evidence given by the respondent/original applicant is remain unchallenged, it can not be said that the evidence given by the respondent is not property appreciated. In the substance, no merits in these submissions also. 10. In view of this discussion about the submissions across the bar as referred in all the paragraphs supra, the revision application sans any merit, hence liable to be rejected. Accordingly the civil revision 7 application stands rejected. 11. The stay is in force to continue for the period of 3 weeks. (A.V.POTDAR, J.) khs/APRIL 2010/cra11-09