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2005 DIGILAW 3205 (RAJ)

Kanhiyalal v. Ram Ratan

2005-12-05

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. The appellants are aggrieved against eviction decree passed by the trial Court dated 02.06.1997 and the appellate Courts Judgment and decree dated 20.12.2002. 2. The deceased plaintiff Ram Ratan filed the suit for eviction of his tenant the defendant Kanhaiyalal and for recovery of arrears of rent on the grounds that defendant has committed default in payment of rent and the suit premises is required for personal bona fide necessity of the plaintiff and for the plaintiff s son as they want to do business in the shop. The other grounds are not very much relevant as the suit has been decreed by the trial Court for personal bona fide necessity of the plaintiff despite the fact the original plaintiff Ram Ratan died during the pendency of the suit. 3. According to the learned Counsel for the appellant submitted an application under Order 41 Rule 27, CPC which was dismissed by the trial Court by order dated 30.07.2002. According to the learned Counsel for the appellant by applications under Order 6 Rule 17,CPC dated 02.05.1998 and the application under Order 41 Rule 27, CPC dated 02.05.1998 the defendant appellant sought permission from the Court to amend the written statement and also sought permission to produce additional evidence because of the fact that by that time appellants could get relevant material to prove that plaintiff landlords son is settled at Ahmedabad and doing the business of motor transport. According to the learned Counsel for the appellant the First Appellate Court dismissed the appellants application under Order 6 Rule 17, CPC and Order 41 Rule 27, CPC on the ground that if the applications are allowed, the suit will have to be remanded for fresh trial and that will delay the decision of the suit. According to the learned Counsel for the appellants the reason given by the First Appellate Court is contrary to the law and on this ground the application could not have been rejected. 4. Learned Counsel for the appellant vehemently submitted that during the trial the plaintiff offered alternate shop to the defendant but the defendant refused to accept the said shop but now the defendant is ready to accept the said shop in case this Court finds no merit in the appeal. 4. Learned Counsel for the appellant vehemently submitted that during the trial the plaintiff offered alternate shop to the defendant but the defendant refused to accept the said shop but now the defendant is ready to accept the said shop in case this Court finds no merit in the appeal. According to the learned Counsel for the appellant, the suit was filed for the personal necessity of the plaintiff landlord Ram Ratan, who expired during the pendency of the suit and the plaintiff s son Jagdish has no experience of the business. 5. I considered the submissions of the learned Counsel for the appellant and perused the record and the reasons given by the two Courts below. It is clear from the facts that the defendant himself took a plea in the written statement that plaintiff s son Jagdish is engaged in the transport business. The defendant failed to prove this fact despite the fact that the said Jagdish appeared in the witness box and the defendant got opportunity of cross-examine plaintiff s son Jagdish. Suit of the plaintiff was decreed on 02.06.1997. The application under Order 6 Rule 17, CPC and under Order 41 Rule 27, CPC have been filed in the year 1996 in a suit which was filed in the year 1984. In the application filed under Order 6 Rule 17, CPC the defendant submitted that the plaintiff s son Jagdish is engaged in the business of transport since 1998. Therefore, from the facts mentioned in the application itself it is clear that the defendant had full knowledge of the fact of Jagdish doing business at Ahmedabad if it is true in such circumstances when defendant failed in proving the fact before the trial Court and has submitted application under Order 6 Rule 17, CPC after such inordinate delay in a suit which has filed in the year 1984, the first Appellate Court was fully justified in rejecting the defendants application. Consequence of allowing the application and remanding of the suit is not a sole ground for rejection of the appellant plaintiff s application under Order 6 Rule 17, CPC and under Order 41 Rule 27, CPC. 6. On merit, it is clear that plaintiff proved his personal bona fide necessity in the suit shop despite the fact of death of original plaintiff Ram Ratan and this finding of fact is not vitiated by any lawful reasons. 6. On merit, it is clear that plaintiff proved his personal bona fide necessity in the suit shop despite the fact of death of original plaintiff Ram Ratan and this finding of fact is not vitiated by any lawful reasons. So far as offer of the plaintiff at particular point of time of alternate shop to the defendant is no more available as now the plaintiff is not willing to give shop to the defendant. The offer of the shop by the plaintiff to the tenant clearly shows the gravity need of the plaintiff for the shop in the dispute as he even offered alternate shop so that plaintiff may get the possession of the shop in dispute. In view of the above reasons, I do not find any merit in the appeal. Hence, appeal is dismissed. 7. At this stage. Learned Counsel for the appellant sought time of two years for vacating the shop. Learned Counsel for the respondents has serious objection against the grant of time of two years to the learned Counsel for the appellant for vacating the shop but, looking to the facts and circumstances, it will be appropriate to allow one years time to the appellant for vacating the shop in question. Therefore, it is ordered that the decree under challenge shall not be executed till 312.2006 upon the appellants furnishing written undertaking before the trial Court that the appellant shall hand over the vacant possession of the suit shop to the plaintiff by or before 01.01.2007 and shall also pay all the arrears of rent if due, within a period of two months from today or may deposit the rent in the trial Court. The appellant shall also pay rent month by month by 15th day of each succeeding month of tenancy in the trial Court or may pay the amount to the landlord directly upon furnishing bank account and particulars for depositing of the rent in bank account. In case of default and non-compliance, the decree shall become executable forthwith. The undertaking be submitted within one month from today.