RAMACHAL CHHOTURAM GUPTA Vs. HINDUSTAN METAL PRESSING WORKS

JUDGEMENT

(1.) THE impugned order under challenge has obviously entailed into miscarriage of justice. In addition thereto the reason assigned by the Appellate Bench of the Small Causes Court have really missed the crux of the matter even though it cannot be said that on the material before it no sufficient cause was shown by the appellant for restoration of the appeal. For obvious reasons, therefore, when there is a clear error apparent on the face of the record, interference is not only fully justified but has become absolutely essential even in this limited field under Article 227 of the Constitution of India. Since the issue in this petition falls in a narrow field all the details need not be re-stated.

(2.) THE tenement in question consists of a small Gala on Mazgaon Road, in Noor Baug area of this metropolis. One Maulabux Alibux since deceased, was the original tenant. It is claimed that by reasons of a deed of assignment dated 18th of November, 1966 the petitioner herein was in ducted in the premises. The said deed was registered on 3rd of March, 1967. Since then the petitioners continues to occupy the premises lawfully. This no doubt has been denied by the landlord challenging the validity and even genuineness of the said assignment deed. We are not much concerned with the intervening event. It is ultimately that the landlord filed R.A.E. and R. Suit No. 916 of 1968 in the Small Causes Court at Bombay for eviction against the petitioner, his servant and the said Maulabux. Those were impleaded as defendant Nos. 2, 3 and 1 respectively. There are also allegations of arrears of rent, change of user and illegal subletting on the basis of which ejectment was sought for. The suit was contested and ultimately did end in passing a decree for eviction on 29th of September, 1979.

(3.) IT is contended and supported by the record that the appeal came to be dismissed on Ist of July, 1980 though there is some dispute about the reason, for the said dismissal as according to the respondent it was dismissed for default whereas it is contended on behalf of the petitioner that it was dismissed because no Bhatta was paid within time petitioner who is one of the appellants then filed an application for restoration of the appeal and the Appellate Bench on hearing both the sides granted the said application and restored the appeal to the file on 31st of July, 1980. Surprisingly from 1980 onwards till at least December, 1983 there was no regular track of the appeal. It came up on board on 14th December, 1983. On that day the petitioner who is the original appellant No. 1 was not present. The appeal was then adjourned to 7th of February, 1984 for final hearing on which day also neither the petitioner-appellant No. 1 nor his advocate were present. It is on that day that the appeal came to be dismissed for default.