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2000 DIGILAW 1276 (RAJ)

Johari Lal v. Tikam Chand

2000-10-18

V.S.KOKJE

body2000
JUDGMENT 1. - The plaintiff - respondent - Tikam Chand filed a suit for eviction of the defendant - appellant-Johan Lal and defendant-respondent No. 2- 1 Iari Narayan, from the suit premises, on the ground of sub-letting and reasonable and bona fide necessity as also on the ground of default. The trial Court dismissed the suit. An appeal was preferred by the plaintiff - Tikam Chand. During the pendency of appeal, an application was moved to bring subsequent events on record on behalf of the appellant. The new ground sought to be taken was that the plaintiff's son was married in between and the premises were needed for use by him also. The appellate Court permitted affidavits to be filed by the parties on the point and they were allowed to cross-examine the deponents of the affidavits also. During the course of arguments of the first appeal, an additional ground was also sought to be pressed into service as to whether the plaintiff was entitled to a decree on the basis of denial of the title of the landlord. Ultimately, the first appellate Court set aside the judgment and decree of dismissal of the suit passed by the trial Court and instead, decreed the suit. Aggrieved by this judgment and decree, the tenant - defendant has filed this second appeal. 2. This second appeal was admitted on the following substantial questions of law : (i) Whether the appellate Court failed in its duty under section 96 of the CPC to appreciate the entire evidence on record while setting aside the judgment and decree of the trial Court? (ii) Whether the first appellate Court erred in deciding the new issues raised before it on the basis of subsequent events on affidavits and not remanding the case for decision on the new issue to the trial Court? Learned counsel for the appellant contended that the first appellate Court has not discussed the evidence on the record of the case and has not appreciate it properly. It was contended that the depositions of various witnesses were not discussed at all. The appellate Court had framed four points for determination in the appeal. Learned counsel for the appellant contended that the first appellate Court has not discussed the evidence on the record of the case and has not appreciate it properly. It was contended that the depositions of various witnesses were not discussed at all. The appellate Court had framed four points for determination in the appeal. They were (i) as to the legality of benefit of first default being given to the tenant by the trial Court, (ii) relating to the validity of the finding on the question of subtenancy, (iii) as to whether the landlord was entitled to decree of eviction on the ground of denial of his title by the tenant, and (iv) whether the trial Court erred in dismissing the suit on the ground of bona fide personal necessity of the premises. The findings on the question of default, sub-tenancy and denial of title are in favour of the defendant-appellant. The first appellate Court had allowed the appeal only on the ground of personal bona fide need. Learned counsel for the appellant submits that evidence on the point of personal need has not been properly appreciated by the first appellate Court and depositions of the witnesses on the point have not been discussed in the judgment. After recording the arguments of the rival parties before it, the first appellate Court referred to the findings of the trial Court. Ultimately, it recorded finding that from the evidence on record, it is proved that the plaintiff was suffering from heart disease and his son also needed premises for running his business. 'The evidence of the witnesses, whose statements were recorded before the trial Court as also the evidence recorded on affidavit by the appellate Court, have not been discussed at all by the first appellate Court. It is the duty of the first appellate Court to thoroughly discuss the evidence on record. It cannot deal with the evidence cursorily and pronounce its decision straightaway. 3. On the second substantial question of law, learned counsel for the appellant submitted that the only way to raise a new ground for eviction was to have amended the plaint and only by filing an application, the issue - could not have been raised. Since the matter has to be remanded back for fresh decision by the first appellate Court, this question will also be open for arguments by the parties before the first appellate Court. Since the matter has to be remanded back for fresh decision by the first appellate Court, this question will also be open for arguments by the parties before the first appellate Court. 4. In the aforesaid circumstances, this appeal is allowed, the judgment and decree passed by the first appellate Court on the point of need of the landlord are set aside and the first appellate Court is directed to hear the appeal afresh on the point of bona fide necessity alone. The appellate Court shall decide the point discussing the entire evidence on record on the point. There shall be no order as to costs. The parties are directed to appear before the first appellate Court on 20.11.2000. The record be sent back immediately.Second appeal allowed. *******