LAXMAN PIRAJI KUMBHAR Vs. RAHNABAI SHAIKH FARID

JUDGEMENT

(1.) RULE returnable forthwith, Shri Kachare waives service. Heard counsel.

(2.) THIS petition is filed by original defendant-tenant to challenge decree of eviction passed by two Courts below. The suit was instituted by the landlords in the Court of Additional Judge, Small Causes Court, Pune, for recovery of possession on the ground of default, requirement, nuisance and annoyance and erection of permanent structure. The trial Court passed ex parte decree on August 7, 1985 as the tenant filed written statement but did not remain present on the date of the hearing. The tenant carried appeal before the District Court, Pune and V Additional District Judge by judgment dated October 1, 1988 dismissed the appeal.

(3.) SHRI More, learned counsel appearing on behalf of the defendant-tenant, submitted that the trial Judge should not have passed ex parte decree and should have given opportunity to the tenant to resist the same. In my judgment, the submission is correct and deserves acceptance. It is true that the tenant was guilty of negligence in not remaining present but the negligence should not be visited with such a heavy penalty of decree of eviction. The ex parte decree deserves to be set aside and fresh opportunity given to the tenant to defend the suit but on condition that the tenant should pay the costs of the trial Court and this Court as condition precedent. The costs are fixed at the rate of Rs. 300/-.