ARJUN Vs. DHARAMDAS

JUDGEMENT

(1.) This review application arises out of judgment dtd. 6/9/2018 passed by this Court (Coram : Rohit B. Deo, J.) in Writ Petition No. 5282/2015, whereby this Court was pleased to dismiss the writ petition challenging the judgment and order dtd. 30/6/2015 passed by the District Judge ' 11, Nagpur, in Regular Civil Appeal No. 59/2014. The First Appellate Court had dismissed the appeal and, thus, confirmed the decree of eviction dtd. 11/12/2013 passed by the Additional Judge, Small Causes Court, Nagpur, in Regular Civil Suit No. 67/2010, which was filed by the respondent ' late Shri Dharamdas Kewalramani, who is/ was represented by legal representatives.

(2.) Mr. M.G. Bhangde, learned Senior Counsel appearing for the review applicant (hereinafter referred to as 'tenant'), submits that this Court, while dealing with application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for short 'the Code'), was required to examine the aspect of 'due diligence' and nothing else. He submits that the application was filed under Order XLI Rule 27(1)(aa) of the Code, but the Court considered the same under Order XLI Rule 27(1)(b) of the Code. He has invited my attention to paragraph 13 of the judgment, which deals with the application so filed by the tenant, which reads thus :

(3.) As could be seen, this Court noted the contentions of the tenant that in spite of exercise of due diligence, copy of NOC, issued by original plaintiff (hereinafter referred to as 'landlord') to the defendant/ tenant for obtaining electricity connection, was procured from MSEDCL subsequent to the judgment and order dtd. 22/7/2015 passed by the First Appellate Court. The Court has then considered the submissions made by the tenant that NOC is a document, which in clear terms, is an admission on the part of the landlord that the applicant is a tenant. The Court then referred to the arguments made in rebuttal by the learned Counsel appearing for the landlord, wherein it was contended that even if it is assumed arguendo that NOC was so issued for obtaining electricity connection, in absence of proof that the tenant is paying either rent or license fee or charge to the original plaintiff, such reference would not cloth the original defendant with the status of tenant. This Court found merit in the aforesaid arguments made in rebuttal and taking note of concurrent finding of both the Courts below that since the defendant did not prove payment of rent or license fee, production of NOC on record and permission to adduce additional evidence would not be necessary for effective adjudication or for just decision.