1 32.sa-756-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION jmi SECOND APPEAL NO. 756 OF 2010. Sou Poonam Pravin Pisat. ..Appellant. vs. Shri Ismail Ahmed Dhanse & Ors. ..Respondents. .... Mr. C.G. Gavnekar, for Appellant. Mr. M.S. Kadu, for Respondents. .... CORAM : G.S. GODBOLE, J. DATE : 24TH AUGUST 2011. P.C. : Heard Mr. Gavnekar for the Appellant and Mr. Kadu for the Respondents. 2. The original Defendant in R.C.S. No. 58 of 2001 filed in the Court of the learned C.J.J.D., Mangaon for the possession of the Suit premises based on a notice of termination of tenancy dated 11th October 2000, has filed the Second Appeal. The relationship of landlord and tenant is not disputed, service of notice under Section 106 of the Transfer of Property Act is not disputed. The Suit was contested on various grounds. 3. During the course of trial, the Appellant had filed Application Exhibit-62 for production of several documents including the document titled as receipt for a sum of Rs. 3,00,000/- stated to have been paid by the Appellant Defendant to the Plaintiff. After the entire evidence was over and the Suit was fixed for arguments, the 2 32.sa-756-10 Appellant filed Application Exhibit-83 which was dismissed by the Trial Court and the Writ Petition No. 8532 of 2006 filed by the Appellant was also dismissed by Justice Mr. S.J. Vazifdar by an order dated 31st January 2007. It is however observed that the Appellant/Petitioner therein, can challenge the order in a substantive Appeal if the Decree is adverse. 4. Thereafter, Application Exhibit-105 was filed by the Petitioner seeking permission to examine herself and to examine other witnesses for proving documents filed with Application Exhibit-62 and the same was rejected by an order dated 16th July 2007. The Application below Exhibit-106 was also filed praying for rejecting the Plaintiff’s Application filed below Exhibit-93 making grievances about non-deposit of rent by the Defendant. Even that Application was rejected by an order dated 16th April 2007. As stated above, Application Exhibit-105 which was filed for examining herself was also rejected by order dated 16th July 2007, which was the subject matter of challenge in Writ Petition No. 3256 of 2007 which was rejected by reserving liberty to the Petitioner / Appellant to challenge the order in an Appeal. 5. Considering all the aforesaid aspects, the learned C.J.J.D., Mangaon, decreed the Suit on 18th June 2007 and this Decree was challenged by the Appellant by filing Civil Appeal No. 137 of 2007 in the District Court, Raigad at Alibag which was subsequently transferred to the Court of the learned District Judge, Mangaon and numbered as Civil Appeal No. 16 of 2010. During the pendency of the said Appeal, again, an Application for amendment of written statement was filed on 7th April 2008 which was dismissed by the Appellate Court which gave rise to filing of Writ Petition No. 3196 of 3 32.sa-756-10 2009. By an order dated 31st August 2009 [Coram : A.S. Oka, J.], the said Writ Petition is rejected and the order was specifically upheld without granting any liberty to challenge the said order in a further Appeal to the Petitioner/Appellant herein. The said order has attained finality. 6. Mr. Gavnekar contends that since the Suit premises had been let out for the purpose of business of Jewellery, the purpose for which the tenancy was created was a manufacturing purpose and hence, the notice was defective as a notice of six months was required to be given under section 106 of the Transfer of Property Act, 1882. It is also contended that the Appellate Court has failed to independently consider the Applications Exhibit-83, 105, 106 and the Application/List Exhibit-62. 7. I have considered the submissions. In view of the order dated 31st August 2009 passed in Writ Petition No. 3191 of 2009, the question regarding the partition of the property has been concluded. Though Application Exhibit-83 seeking amendment has been rejected, the Appellant’s contention that an additional sum of Rs. 3 lacs was allegedly paid had been considered by the Trial Court and the Appellate Court and independently by me. The Trial Court has already recorded finding based on evidence, that the case of the Appellant of payment of Rs. 3 lacs cannot be accepted. In any case, the same would not have any consequence on the merits of the controversy, particularly when the relationship of landlord and tenant is admitted, the Maharashtra Rent Control Act, 1999 is not applicable and notice under section 106 of Transfer of Property Act, 1882 has been served. Assuming that the Appellate Court has not independently considered the Applications Exhibits-83 and 62, that 4 32.sa-756-10 would not vitiate the ultimate findings. Once this is the conclusion, then the finding of the Appellate Court regarding Application below Exhibit 105 cannot be faulted with. Application Exhibit 106, as stated above, does not relate to the real controversy involved in the Suit. 8. This takes us to the first submission that the business of Jewellery must be considered to be manufacturing activity. In the first place, this submission does not appear to have been canvassed before the First Appellate Court. I have independently considered the said submission and do not find any merit in the same. The business of Jeweller/ Jewellery cannot be considered to be a manufacturing activity and hence, the purpose of letting/ lease cannot be considered to be a manufacturing purpose. No fault can be found about the validity of the notice. 9. No substantial question of law arises in the Second Appeal, the same is rejected. In view of dismissal of the Second Appeal, the Civil Application No. 23 of 2010 does not survive and the same is dismissed. [ G.S. GODBOLE, J. ]