AAMNA BAI Vs. PREM PRAKASH

JUDGEMENT

(1.) The present second appeal has been filed by the appellant-defendant-tenant Aamna Bai W/o late Sh. Ishaji, aggrieved by the judgment and decree of the first appellate court dated 02.11.1992 in Civil Appeal No.1/1992-Prem Prakash @ Dhanraj Vs. Aamna Bai decreeing the eviction suit in favour of respondent-plaintiff-landlord, namely, Prem Prakash @ Dhanraj reversing the decree of trial court dismissing the eviction suit No.822/87 (148/85) - Prem Prakash @ Dhanraj Vs. Aamna Bai.

(2.) At the outset, it may be noted that the present second appeal was dismissed in default for appearance and prosecution on 23.03.2009 by a coordinate bench of this Court. However, on restoration application filed by the different counsel, who is now appearing in the matter, Mr. J.R. Patel, the restoration application being S.B. Civil Restoration Application No.54/2011- [Abdul Rehman & Ors. (legal representatives of original defendant- Aamna) Vs. Prem Prakash @ Dhanraj], the same was allowed by this Court on 27.05.2011 noticing therein the statement of learned counsel for the appellant-tenant, Mr. J.R. Patel, that the decree of eviction has already been executed and the possession of the suit shop in question has been handed over back to the respondent-plaintiff-landlord on 05.07.2009 after dismissal of the second appeal on 23.03.2009 and even then the present second appeal was restored at his request.

(3.) At the time of initial admission of the second appeal, a coordinate bench of this Court vide the order dated 19.01.1993 had formulated the following substantial question of law for consideration: