1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.469 OF 1989 1. Shamuwel Jayvantrao Phulpagar age major, 2. John Jayvantrao Phulpagar, age major, both retired and residents of Rahuri Bk. Taluka Rahuri, appellants/ District Ahmednagar. Plaintiffs versus Smt. Sushilabai G. Tambe, age major, occupation labourer, r/of Rahuri Bk. Taluka Rahuri, District : Respondent/ Ahmednagar. defendant. ------- Shri V.S.Bedre, Advocate, for the appellants. None for the Respondent. ------- Coram : P.R. Borkar, J. Date : June 08, 2010 ORAL JUDGMENT 01. This second appeal is preferred by original plaintiff being aggrieved by the order of remand passed by the learned Additional District Judge, Ahmednagar, in Regular Civil Appeal No.395 of 1984 decided on 29.3.1989, whereby the decree for 2 possession passed in R.C.S. No.629 of 1983 by learned Joint Civil Judge, Junior Division, Rahuri on 10.10.1984 was set aside and the matter was remanded to the trial court for decision afresh with permission to defendant file written statement and adduce evidence. The suit by the plaintiff was for possession on the ground that six years before filing suit, the respondent trespassed upon the suit property and is occupying as such. 02. Respondent-defendant appeared in the suit and filed two applications seeking time to file written statements which were granted. However, no written statement was filed and defendant remained absent and, therefore, order to proceed exparte was passed. Thereafter defendant made an application seeking time to file written statement, but the court proceeded exparte and decreed the suit. As against that regular civil appeal was filed. The appellate court considered the circumstances, so also the documents placed before it and remanded the matter. It is this order of remand which is challenged in the second appeal. 03. By order dated 7.12.1989, on substantial 3 questions of law as disclosed in ground Nos.9,10 and 11 of the appeal memo, this second appeal is admitted. Those grounds are as under; (9) That, the learned lower Appellate Court ought to have held that the Respondent has not filed his written statement within the stipulated time. In fact, initially the Respondent has appointed Advocate for contesting his case and the Advocate of the Respondent has obtained 3 adjournments (for) filing the written statement. Thereafter, the Respondent again appointed new Advocate and his Advocate has also obtained 3 adjournments (for) filing written statement. In spite of that, Respondent has not filed any written statement and only gave an application at Exhibit 18 without filing the written statement. Therefore, the Trial Court has rightly passed the decree for possession in favour of the present Appellant. (10) That the learned lower Appellate Court erred in holding that the Trial Court has granted adjournments to the Respondent for filing the written statement only for two times. The Appellants respectfully state that the learned lower Appellate Court has not at all appreciated the record before it. (11) That the lower Appellate Court erred in relying upon the citation i.e. 1986 M.L.J. page 4 525. 04. Heard Shri V.S.Bedre, learned Advocate for the appellant. 05. After considering the submissions made in details by the learned counsel and on perusing the documents produced on record, particularly by the appellant-defendant in the district court with list dated 17.11.1984, it appears that right from September 1980 onwards, there were about 12 receipts showing payment of rent. there are also money orders of rent amounts sent thrice in the year 1979-80. The suit is filed in the year 1984. 06. To the notice issued prior to filing of the suit, reply was given by the defendant wherein defence of tenancy is taken. The order of remand is passed by the learned Additional District Judge on 29.3.1989. The substantial question of law, namely, whether the defendant has a right of tenancy in the suit premises, is involved. In support of this contention, certain documents were produced before the District Court. 07. It cannot be said that mere rejection of third application seeking time to file written statement amounts to an illegality or on that count the order of the trial 5 court should be set aside; still, looking to the facts and circumstances, in my opinion, the first appellate court has done justice and, therefore, this is not a case wherein any interference is required in the discretion exercised by the learned Additional District Judge. 08. In the circumstances, second appeal is dismissed. The order passed by the District Court is hereby confirmed. Registry to send the Record and proceedings to the trial court forthwith. Trial court shall take up the matter on board immediately; and considering the fact that it is a quite old matter, will give precedence to the same. After receipt of record and proceedings the trial court shall decide the matter preferably within six months. 09. Second Appeal disposed of. pnd/sa469.89 (P.R.BORKAR, J.) 6