2010(2) ALL MR 722
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

V.A. NAIK, J.

M/S. Khatri Film Enterprises & Ors.Vs.M/S. Vijay Cycle Stores & Ors.

Writ Petition No.5139 of 2008

1st December, 2009

Petitioner Counsel: Shri. V. G. BHANGDE
Respondent Counsel: Shri. ANJAN DE,Shri. S. B. AHIRKAR

Constitution of India, Art.226 - Civil P.C. (1908), O.41, R.23 and S.107 - Remand of matter - First Appellate Court/Authority not considered several material pieces of evidence while passing impugned order - Appellate Authority failing in its duty in deciding the appeal in accordance with law - Held, this is a fit case for remanding the matter to the First Appellate Authority for deciding the appeal afresh on merits, in accordance with law. (Para 3)

JUDGMENT

JUDGMENT :- Rule. Rule made returnable early. The petition is heard finally with the consent of the learned counsel for the parties.

2. On hearing the learned counsel for the parties for a considerable time, the learned counsel for the parties agreed that this was the case for remand to the First Appellate Authority i.e. the District Collector, Amravati, as the several material pieces of evidence were not considered by the First Appellate Authority while passing the impugned order dated 17.9.2007.

3. I have heard the learned counsel for the parties at length and perused the impugned order dated 17.9.2007 along with the report of the Rent Controller dated 28.4.2006, the objections filed by the petitioner thereto, the evidence of the witnesses examined on behalf of the petitioner and the respondents. On perusal of the same it is clear that the First Appellate Court has not adverted its mind to the evidence of the witnesses examined on behalf of the petitioners and also not considered the evidence of the respondents' witnesses in cross-examination, and ignored the evidence tendered on behalf of the petitioners and respondents in the cross-examination and thus the Appellate Authority has failed in its duty in deciding the appeal in accordance with law. Hence I am satisfied that this is a fit case for remanding the matter to the First Appellate Authority for deciding the appeal fresh on merits, in accordance with law.

4. Hence for the aforesaid reasons, the impugned order passed by the District Collector, Amravati on 17.9.2007 is hereby quashed and set aside. The matter is remanded to the District Collector, Amravati to decide the appeal afresh in accordance with law. All the points raised by the parties are kept open and since the matter is old one, the District Collector, Amravati is directed to decide the appeal as early as possible and positively within a period of 4 month from the date of appearance of the parties before the authority. The parties undertake to appear before the authority on 16.12.2009, so that the issuance of individual notices to the parties could be dispensed with. Rule is made absolute in the aforesaid terms with no order as to costs.

Petition allowed.