SHETHNA, J. - (1.) THE respondents - plaintiffs filed a suit for possession against the appellants-defendants on the ground of personal necessity in the year 1970. THE trial court found in favour of the plaintiffs on the point of their personal bonafide requirement. But, on the ground of comparative hardship, the trial court dismissed the suit by its order dated 29th of May, 1981. In appeal, the learned Judge not only found in favour of the personal requirement of the plaintiffs, but also found that greater hardship will be caused to the plaintiffs if the suit is not decreed. THErefore, on 29th of January, 1994 he allowed the appeal and set-aside the decree passed by the trial court and decreed the suit in favour of the plaintiffs.
(2.) THOUGH no stay was granted by this Court against the impugned order, the decree is not executed on the undertaking given by the learned counsel for the plaintiffs. This second appeal was earlier placed for orders before my learned brother Milap Chandra Jain, J. on 19lh of April, 1994. Thereafter, it was placed before my learned brother P. P. Naolekar, J. Thereafter, it came up before me for admission on 20th of January, 1995. On that day, Mr. Jasmatia, learned counsel, who is also Additional Advocate General of the State, appearing for the appellants has insisted to argue only the application filed by him in the second appeal under Order 7 Rule 7 read with Section 151 of the C. P. C. which was rejected by me after hearing him at a great length by a speaking order on 20th of January, 1995. Thereafter, request for adjournment of the case was made by the learned counsel lor the appellants as he wanted to come fully prepared to address this court. In the interest of justice, this appeal was adjourned by me on 1. 2. 1995. On 3rd of February, 1995, this appeal was listed for admission before me. But, the learned counsel for the appellants filed review application against my order and insisted to hear that review petition. That was also heard at great length by me and it was rejected by a speaking order on 3rd of February, 1995. On that day, it was made clear that the appeal will be posted for admission on 21st of February, 1995 and the matter will not be adjourned on any ground. Thereafter, it appeared before my learned brother R. R. Yadav, J. on 24th of February, 1995. From the order-sheet, it appears that at the request of Mr. Jasmatia, the case was adjourned for one week. And, today it has again appeared before me. This appeal was called out at 3. 45 P. M. The Court timing was uplo 4. 30 P. M. But 1 have heard Mr. Jasmatia till 5. 00 P. M. I may also state that on earlier two occasions in application and review application, he argued at great length. This is a second appeal and scope of it is very limited. Today, number of matters were listed on the Board, but no other matter could be taken up after this matter was called out. Mr. Jasmatia has tried to argue the points which have not been raised in the memo of second appeal. In all, 11 questions of law have been framed in this second appeal, but none of them is a substantial question of law. The argument was that even if the question is not framed in the memo of second appeal, the Court must consider and framed it as it is the duty of the Court to frame the question of law in the second appeal. Certainly, the Court has to frame the question of law, but it has to be framed and made out by the appellant. The learned counsel for the appellants made a serious grievance about not dealing with the contentions raised on behalf of the appellants-defendants by the courts below. When I asked him to point out from his memo of appeal he was unable to point out the same. The Supreme Court has laid down that such grievance should first be made before the lower court. In this case, even it is not stated in the memo of appeal. Therefore, the grievance made by the learned counsel for the appellants that the courts below have over looked the material evidence on the record is without any substance.
(3.) THE question of bonafide and personal requirement is not a substantial question of law. It is at the most a mixed question of law and fact. Even if the courts below had committed error in appreciating the evidence, that fact itself would not be sufficient to entertain this second appeal. In this case, the landlord-plaintiffs filed the suit in 1970 are still not able to get the possession though the decree was passed in their favour in 1994. Before parting with the order I must observe that always there is a criticism against the functioning of the Courts and the delay in disposal of the cases. But, who is to be blamed for it! If the appeals are to be argued in this way, then the arrears is bound to be increased. In this matter, so much time of the Court is consumed by the learned counsel for the appellants and because of it other real, important and urgent matters could not be taken up. In view of the above discussion , I do not see any reason to entertain this second appeal as no question of law much less substantial question of law is involved in it. Accordingly, this second appeal fails and is dismissed. The appellants are directed to pay costs of Rs. 5000/- (Rs. five thousand only) to the respondents and to hand over the vacant and peaceful possession to the respondents on or before 30th of April,1995. . ;