DIGAMBAR VANJI MALI Vs. KISAN KHANDU CHAUDHAR

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the District Judge, Dhule dated 27th June, 1989 in Civil Appeal No. 344 of 1989. Both the parties consent to proceed with the hearing of this petition before the Bombay Bench, though it pertains to Dhule District.

(2.) THE petitioner is a tenant in respect of the premises situated within the Municipal limits of Deopur Lane No. 10 of Dhule ad measuring about 15 x 10 consisting of one room on monthly rent of Rs. 30/- and other taxes. The respondent-landlord issued demand notice to the petitioner calling upon him to pay the arrears of rent for a period between October 1982 till the demand notice dated 28-8-1983. According to the respondent, since the petitioner did not offer the amount demanded in the said notice within the specified time of one month, the respondent instituted a suit for recovery of possession on the ground of default within the meaning of section 12 of the Bombay Rent Act. Besides the ground of default, the respondent also claimed for recovery of possession on the ground that the petitioner has committed an act of nuisance and annoyance to the neighbours and adjoining occupiers. The trial Court after considering the rival stand proceeded to decree the suit on both the counts vide order dated 30th June, 1984. The petitioner carried the matter in appeal before the District Court, Dhule being Civil Appeal No. 344 of 1984. It appears that during the pendency of the said appeal the Advocate for the petitioner filed purshis of no instructions and consequent to which notice was issued by the Court. Thereafter the petitioner engaged another Advocate. However, it is stated that, when the matter was taken up for hearing before the Appellate Court, the said Advocate did not remain present. Moreover, since the petitioner was not aware of the date of hearing even he did not attend the Court. The lower Appellate Court however, proceeded to decide the appeal on merits and dismissed the same by order dated 27-6-1989. It is this order which is subject matter of challenge in the present writ petition.

(3.) SINCE indubitably the Appellate Court has decided the matter on merits by the impugned order in absence of the petitioner or his Advocate, such an order cannot be sustained in law. It is well settled that if the appellant or his Advocate is absent then the Court would be at best, dismiss the appeal for non prosecution, but ought not to decide the same on merits. This proposition is no more res integra. The Apex Court in the case of (Abdul Rahman and others v. Athifa Begum and others), reported in 1997 (1) Mh. L. J. 566 has taken this view. In the circumstances, instead of going into merits of the rival contentions, the appropriate course open for me is to set aside the order under challenge and remand the matter to the Appellate Court for rehearing of the appeal in accordance with law.