MATHURABAI GENU SONAVANE Vs. RAHIBAI BALASAHEB KARATHE

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the order passed by the Additional District Judge, Pune dated September 8, 1994 below Entry No. 2080.

(2.) BRIEFLY stated, the respondent landlord instituted suit against the husband of the petitioner herein, who is stated to be the original tenant, in respect of the suit premises, before the Court of Small Causes, Pune being C. S. No. 374 of 1993, for possession together with arrears of rent, mesne profits and costs. It appears that summons of the said suit was sent to the defendant, i. e. petitioners husband, but was returned unserved as not claimed. Consequently, the trial Court passed order on 27th October, 1993 that suit to proceed ex-parte. Later on, the trial Court by order dated 3rd January, 1994 decreed the suit in favour of the respondent. According to the petitioner, the petitioner had no knowledge about the said ex-parte proceedings or the suit instituted by the respondent. The petitioners case is that the petitioners husband was absconding since more than one year prior to the institution of the said suit. In other words, the petitioners defence is that her husband was not available in the suit premises and therefore no notice was served on him. The petitioner has also asserted before the Appellate Court that no notice was attempted to be served either personally or through any other mode on the petitioner who was occupying the suit premises as family member of the original tenant. The petitioners further case is that it is only when the ex-parte decree was sought to be executed on 29th August, 1994 that the petitioner became aware about the existence of the ex-parte decree; and immediately thereafter, being the wife of the original defendant and occupant in the suit premises, rushed to the Appellate Court on 5th September, 1994 and took necessary steps including filing of application for permission to file appeal, as well as another application for condonation of delay in filing the appeal against the ex-parte decree dated 3rd January, 1994 for the reasons set out therein, and also lodged memorandum of appeal. The Additional District Judge, Pune by the impugned order has rejected the petitioners prayer for permission to file appeal as well as the application for condonation of delay and resultantly refused to register the appeal filed on behalf of the petitioner. It is this order that has been taken exception to in the present writ petition.

(3.) THE gravamen of the grievance made on behalf of the petitioner is that the Court below has clearly exceeded jurisdiction in addressing itself to matters which would have been relevant only after the Court had decided the application moved by the petitioner for permission to file appeal. According to the petitioner, there was sufficient cause and good reason which prevented the petitioner from filing the appeal within limitation. According to the petitioner, the matters that have been considered by the Appellate Court while rejecting the permission are totally extraneous, in that the same would be relevant only while considering the merits of the grounds of appeal. In other words, what is contended is that for the time being, the Court ought to have confined to the issue as to whether the petitioner had made out sufficient and reasonable cause for condoning the delay in filing the appeal and secondly whether the petitioner was competent and had locus to maintain the appeal.