1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL ST.NO.22863 OF 2008 Sudhakar Pandurang Deshmukh (since deceased through his L.Rs and another ...Appellants vs. Kantilal Mohanlal Khinvasara ...Respondent Mr.Uday Warunjikar for the appellants Mr.A.S.Daver a/w Mr.Sayeed Mulani i/b Mulani & Co. for the respondent CORAM :A.S.OKA,J. DATE : AUGUST 28, 2009 P.C. 1 I have heard the learned counsel for the appellants and the learned counsel for the respondent. With a view to appreciate the submissions made by the learned counsel, it will be necessary to refer to the facts of the case in brief. 2 The respondent filed a suit in the year 1999 seeking decree for possession. The evidence of the respondent was recorded. However, the petitioner did not appear for cross examining the respondent. The suit was decreed.An appeal preferred by the petitioners was dismissed by the District Court. 3 The case of the respondent is that he was the owner of the suit property which consists of land admeasuring 10 x 80 together with a structure thereon. The 2 respondent was conducting a juice bar and restaurant in the said structure. According to the case of the respondent, under the agreement dated 1 st July 1993 the said structure was allowed to be used by the appellants on leave and licence basis. As per the said agreement of licence, the appellants had agreed to pay a sum of Rs. 7,500/- as licence fee per month and further agreed to pay an amount of Rs.1,70,000/- towards hand loan. Except for the amount of Rs.37,800/- towards licence fees, the respondent failed to pay licence fee. Thereafter, the licence was licensee came to an end on 31 st May 1994. By sending a notice, the license was revoked. The defence of the appellants in their written statement was that the agreement was in fact an agreement creating tenancy in favour of the appellants. The respondent stepped into a witness box. However, he was not cross-examined. The original leave and licence agreement was placed on record and was exhibited. 4 The submission made by the learned counsel for the appellants is that an application was made by the appellants at Exh.83 on 20 th September 2001 praying for setting aside the order of no cross but no order was passed by the trial court on the said application. His submission is that the said application was never disposed of and the same remained pending till the decree was passed. He submitted that without deciding the said 3 application on merits, the trial court could not have decided the suit. If such application was allowed, the appellants may have adduced the evidence. Secondly, he placed reliance on the documents annexed to Civil Application No.1807 of 2008. This civil application is filed for seeking permission to lead additional evidence. He pointed out that a suit was filed by the second appellant against the Pune Municipal Corporation. One Deepak Kulkarni, an Officer of the Municipal Corporation was examined as a witness who stated that the respondent constructed the structure on an approach road and the respondent is not the owner of the approach road. He therefore submitted that the appellants will have to be permitted to lead additional evidence in terms of the prayer in the said application. Lastly, he submitted that the original first defendant was always ill and therefore he could not defend the suit. He submitted due to illness of the 1 st defendant, the second defendant- wife could not properly defend the suit. He pointed out that the original first defendant was suffering from failure of kidney and he was on dialysis. He, therefore, submitted that an opportunity deserves to be granted to the appellants adduce the evidence. 5 I have carefully considered the submissions. As far as the alleged illness of the original first defendant is concerned, most of the documents placed on 4 record of the civil application for condonation of delay relate to the period from the year 2005 onwards. Even according to the averments made in the said application, the medical treatment started from 2003 onwards. The suit has been decided in the year 2002. 6 As far as grievance regarding failure to decide the application at Exh.83 is concerned, it must be stated here that this was not the only application made by the appellants. An application was made on 26 th April 2001 by the original defendant at Exh.80 seeking permission to adduce evidence. The Application at Exh.83 was made on 20 th September 2001. The appellate Court has noted that on 13 th January 2001, as per the request made by the appellants vide application at Exh.72, the cross examination of the respondent was adjourned to 26 th February 2001. On 17 th March 2001 and 6 th April 2001 applications in writing were made by the appellants for grant of adjournments. The said applications were allowed subject to payment of costs which was made a condition precedent. On 25 th June 2001, again an application was filed for adjournment by the defendants which stood rejected by a speaking order. The amount of costs which was earlier imposed was also not paid by the appellants. Thereafter, the respondents filed a pursis closing his evidence. Thereafter the application at Exh.80 was made by the appellants on 26 th July 2001. On 5 4 th September 2001, 4 th October 2001 and 7 th November 2001 appellants again moved applications for adjournments. On 28 th November 2001, the application at Exh.80 was rejected. Application dated 26 th April 2001 (Exh.80) made by the defendants was rejected by the court on 28 th November 2001. There is nothing on record to show that during the pendency of the suit, the appellants made any grievance about the failure to decide the application at Exh.83. All these aspects have been considered by the District Court. It is very difficult to find fault with the findings of the learned District Judge especially when so many applications were filed by the petitioners and all the said applications except application at Exh.83 were decided by the trial court. The trial court cannot be blamed if no order was passed on application at Exh.83 considering the conduct of the appellants. In the written statement, the appellants did not dispute the existence of the leave and licence agreement but contended that in fact a tenancy was agreed to be created. 7 Now coming to the application for adducing additional evidence, reliance is placed on the evidence of an officer of the Pune Municipal Corporation which is recorded in a suit filed by the second appellant. In the first paragraph of the cross examination of the said witness, he stated that the present respondent was the 6 owner of the suit property and in the year 1998 a permission was granted to him to make construction. The attempt of the appellants to rely upon the said deposition is to show that the respondent is not the owner of the suit property. However, the issue of ownership is not at all relevant as the suit filed by the respondent is based on leave and licence agreement which has been duly proved. Hence, there is no merit in the civil application. 8 No substantial question of law arises. Second Appeal is accordingly dismissed. JUDGE