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2004 DIGILAW 1487 (RAJ)

Bajrang Lal v. Bhanwar Lal

2004-10-11

PRAKASH TATIA

body2004
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. By this appeal the appellant wants to challenge the decree of eviction passed against the appellant tenant by the trial Court and which was upheld by the first appellate Court. 3. According to learned Counsel for the appellant; the plaintiff filed a suit for eviction against the defendant tenant appellant on the ground of personal bona fide necessity of the suit premises as according to the plaintiff , the suit premises is required for the business of plaintiff’s two sons Rajendra Kumar and Kamlesh. The plaintiff also submitted that the defendant committed default in payment of the rent. However, the trial Court giving benefit of the first default to the appellant tenant decreed the suit of the plaintiff on the ground of personal bona fide necessity of the suit premises by the plaintiff for his two sons Rajendra Kumar and Kamlesh. 4. The appeal was preferred by the tenant appellant against the Judgment and decree of the trial Court dated 9th April, 2004. During the pendency of the appeal a shop of the plaintiff was vacated by the another tenant. The defendant appellant submitted an application under Order 6 Rule 17, CPC before the first appellate Court and sought amendment in the written statement so that the appellant may take a defence on the basis of subsequent event i.e., eviction of the vacant shop by the plaintiff landlord after the Judgment and decree of the trial Court. 5. According to learned Counsel for the appellant, the premises, which was vacated by the plaintiff’s another tenant is adjacent to the shop of the appellant tenant, therefore, need of the plaintiff or his sons can be satisfied by that premises. The said application of the appellant was dismissed by the trial Court while deciding the appeal itself . 6. According to learned Counsel for the appellant, as per the Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, no Court can pass the decree for eviction unless the ground for eviction as enumerated in Section 13 of the Act are satisfied. In this case, since the plaintiff himself got vacant possession of the one of his own shop, therefore, if there was any need of the shop, that has been satisfied after getting vacant possession of the another premises by the plaintiff . In this case, since the plaintiff himself got vacant possession of the one of his own shop, therefore, if there was any need of the shop, that has been satisfied after getting vacant possession of the another premises by the plaintiff . According to learned Counsel for the appellant, since it is an admitted fact that one of the shop fell vacant during the pendency of the appeal and possession was taken over by the plaintiff , therefore, it was a matter of enquiry whether the shop has been used for the purpose for which it was got vacated from the tenant. The first appellate Court should have allowed the application filed under Order 6 Rule 17, CPC and should have permitted to the appellant take a defence on the basis of subsequent event. 7. I considered the submissions of learned Counsel for the appellant and perused the facts of the case. It is clear from the fact that during the pendency of the appeal, another shop which was in occupation of another tenant of the respondent landlord, came in possession of the landlord, but at the same time, it is clear that the said shop was got vacated by the plaintiff by filing the suit against the tenant, who was in occupation. The plaintiff obtained the decree on the ground of personal bona fide necessity of his another son Prem Singh so that he may run his business of utensils and grocery. The defendant in his application admitted that the shop was got vacated by obtaining the decree and the shop is in possession of the plaintiff since last 8-10 months only. 8. In these facts and circumstances of the case, even if , the shop was not put to use for the purpose for which the decree was obtained by the plaintiff for such a short period, it cannot be presumed that the plaintiff will not use the premises or will not permit his son Prem Singh to do the business despite obtaining the decree on the ground of personal bona fide necessity and will take risk of loosing the possession of the shop in the light of Section 15 of the Act of 1950. The establishment of the business may take some time, therefore, there is a specific provision in the Rent Control Act itself which provides the time limit within which the landlord is required to put to use the premises for which he obtained the decree for eviction on the ground of his need otherwise tenant, who vacated the premises may take possession under Section 15 of the Act of 1950. The plaintiff’s present case was specific and he sought the decree for eviction for the need of his another sons and they are Rajkumar and Kamlesh. In view of the above, if the first appellate Court dismissed the application for amendment after taking note of all the facts, the first appellate Court has not committed any error of fact and law. However, the first appellate Court was wrong in holding that after the amendment in the Civil Procedure Code, the appellate Court cannot permit the amendment in the written statement on any of the grounds, but that has no effect on the Judgment of the first appellate Court. 9. Since, there is a concurrent finding of fact in favour of the plaintiff respondent that the suit premises was required for his personal bona fide necessity because of any reason and since there is no substantial question of law arises in this appeal, therefore, the appeal deserves to be dismissed. 10. Learned Counsel for the appellant submits that the appellant has business in the premises since long and in case, he will have to vacate the premises within a short time, he will suffer an irreparable injury, therefore, three years’ time may be granted to the appellant to vacate the premises in dispute. 11. Learned Counsel for the respondents submits that three years’ time is too much in a matter where the decree has been granted by the two Courts below on the ground of personal bona fide necessity of the plaintiff’s sons and the plaintiff’s sons will suffer greater hardship. 12. I considered the facts of the case. 11. Learned Counsel for the respondents submits that three years’ time is too much in a matter where the decree has been granted by the two Courts below on the ground of personal bona fide necessity of the plaintiff’s sons and the plaintiff’s sons will suffer greater hardship. 12. I considered the facts of the case. I deem it proper that the decree under challenge may not be executed till 31st Dec., 2005 on the condition that the appellant shall submit a written undertaking within a period of one month from today before the trial Court that he will handover the vacant possession of the suit premises to the landlord on or before 1st Jan., 2006 and during this period, the appellant shall not sub-let the shop in dispute to anybody. The appellant shall further pay the mense profit to the landlord month by month by 15th day of each calender month or may deposit the rent in the trial Court. In case of not furnishing the undertaking and in case of default in payment of the rent for any month, the decree shall become executable forthwith. 13. In view of the above, the appeal of the appellant is dismissed with above condition.