1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 219 OF 2010 Ashok Rama Kshirsagar and others .. Appellants Versus Pravin S/o Chunilal Gandhi .. Respondents Shri C. V. Dharurkar, Advocate for Appellants. Shri P. D. Suryawanshi, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 29TH SEPTEMBER, 2010. PER COURT : . The present respondent had filed a suit for possession on the ground that the present appellants were in permissive possession and have not vacated the same. The defendants though served with the notice did not file the written statement. The application seeking time to file the written statement came to be rejected. The said order was assailed before this Court. This Court also rejected the writ petition. The Trial Court, however, permitted the appellants to cross examine the plaintiff. 2 The Trial Court on appreciating the evidence decreed the suit. The appellants preferred an appeal, the Appellate Court also dismissed the same and did not consider the prayer of remand. 2. Against the said decision the appellants are approaching this Court. Shri Dharurkar, learned counsel for appellants strenuously contended that as the defendants could not file the written statement, they did not get the proper opportunity to defend their case. Rejection of writ petition would not affect the prayer of the appellants to remand the case and to give an opportunity to file the written statement. According to him, even as per Section 105 of the Civil Procedure Code, the appellants in an appeal can challenge any error, defect or irregularity in any order affecting the decision of the case. He prayed for remand of the matter and to give an opportunity to them. It was further contended by him that the Courts below have observed that the appellants were tenants. In such circumstances, notice U/Sec. 106 was mandatory. He has also contended that, the appellants have filed an application seeking production of documents i. e. the license of Eating House issued by the authorities. So also a notice received from Public Works Department for removing the caffe, as the same is within the prohibited area as per the 3 Bombay High Ways Act. 3. Per contract, learned counsel for the respondent Shri Suryawanshi argued that the observations of the Courts that the plaintiff agreed that the respondents are tenants is erroneous. In his deposition the plaintiff no where contended that the defendants are tenants. The case of the plaintiff was that the defendants are in permissive possession and as such notice U/Sec. 106 was not necessary. So also when it is case of disclaimer of title, the notice is not necessary. According to him, it is not disputed that the defendants are conducting the business and so the certificate of eating house issued by the authority is of no avail. 4. With the assistance of the learned counsels for the parties I have gone through the judgments. The prayer of the appellants for remand of the matter and giving an opportunity of filing the written statement could have been considered if the defendants would have abstained totally. But the defendants have prosecuted the proceeding and have even cross examined the plaintiff and put forth their case. As such, the question of remand is not being considered. Regarding the documents filed 4 by the appellants in the present second appeal, I have perused the said documents and I find that the same would not be of any assistance to the appellants. In as much as it is not disputed that the appellants are carrying the business, they have been granted a license of eating house. Regarding the notice issued by the Public Works Department, I feel that the said document also may not be of any assistance as it only states that the said structure is within a periphery of 110 feet from the center of the road, which is not permissible as per the Bombay High Ways Act. 5. Taking into consideration the totality of the facts and circumstances, I do not find that the second appeal involve any substantial question of law. As such, the second appeal being devoid of any substantial question of law is dismissed. 6. At this stage, Shri Dharurkar, learned counsel for appellants states that, admittedly the appellants are doing business on the said premises and as such seeks a years time to vacate the said premises. This prayer is resisted by Shri Suryawanshi, learned counsel for the respondent and contends that it would be too unreasonable to grant such a time as the respondent is litigating and seeking the possession since the year 5 2002. 7. Taking into consideration the fact that the appellants are running small business and it would be difficult for them to make an alternate arrangement immediately. I grant the appellants six months time to vacate the suit premises on condition that the appellants submit an undertaking to this Court that the appellants would not create any third party interest and shall not induct any other person in the suit property and shall vacate the suit premises by end of March, 2011. The said undertaking shall be filed within a period of two weeks from today. The second appeal is accordingly disposed of. [S. V. GANGAPURWALA, J.] bsb/Sept. 10