- (1.) HEARD learned counsels for the parties.
(2.) LEARNED counsel for the appellant ­ defendant, Mr. N.M. Lodha, Sr. Advocate urged that the suit for possession has been decreed in favour of the plaintiff ­ respondent ­ brother of the defendant, Chandmal without the defence evidence being led. He, therefore, prayed for a limited relief that before examining the validity of the concurrent decrees of possession in favour of the plaintiff ­ respondent, the defendant ought to have been allowed an opportunity to lead his evidence and since he is living in USA for last number of years, to avoid any mis-carriage of justice, the trial court may be directed to examine the defendant Chandmal and one more witness, which he wants to produce in support of his case. This request of the learned counsel for the appellant ­ defendant, Mr. N.M. Lodha is strongly opposed by Mr. Suresh Shrimali, learned counsel appearing for the plaintiff ­ respondent ­ the decree holder. He submitted drawing the attention of the Court towards para 8 of the appellate court's judgment that for a period of 2 1/2 years, the defendant was allowed numerous opportunities on various dates to lead the evidence and on two of such occasions with cost of Rs.100/- and Rs.150/- respectively, but the defendant failed to produce such witness. He, therefore, submitted that the concurrent decrees in favour of the plaintiff ­ respondent, which does not give rise to any substantial question of law, the present second appeal of the defendant deserves to be dismissed. He relied upon a Supreme Court decision in the case of M/s. Shiv Cotex vs. Tirgun Auto Plast P. Ltd. & ors. reported in 2011 AIR SCW
(3.) IN rejoinder, Mr. N.M. Lodha, Sr. Advocate submitted that the defendant, Chand Mal would not lead any documentary evidence, if an opportunity is granted to him and two witnesses may be allowed to be examined by the learned trial court subject to cross-examination by the plaintiff and subject to payment of reasonable cost to the plaintiff and the statements so recorded may be sent to this Court, the effect of which may be examined by this Court in the present Second Appeal of defendant, which may be kept pending. He submitted that a period of three months' may be granted to the learned trial court for this purpose.;