JUDGMENT 1. - The instant second appeal under Section 100 CPC has been filed against the judgment and decree dated 20.2.1993 passed by the learned Addl. District Judge, No. 1, Ajmer whereby he upheld the judgment and decree dated 18.8.1983 passed by the learned Munsiff Magistrate , Ajmer in Civil Suit No. 229/1976 (107/1978) whereby the decree of eviction and arrears of rent was passed by the learned Munsiff against the tenant appellants. 2. The substantial questions of law formulated at the time of admission of this appeal are as under: (i) Whether the suit filed on 6.7.1976 on the ground of non-payment of rent was not pre-mature? (ii) Whether in view of the facts found by the Courts below, it can be legally said that the tenant had sub-let the premises in dispute or had parted with the possession thereof? and (iii) Whether in view of the fact that Dr. Poonam Chand son of one of the plaintiffs having been employed in the Government service, the decree-for eviction on the ground of personal requirement can be sustained? 3. The brief facts giving rise to this second appeal are that the plaintiffs Mr. Hem Chand Ranka and Mr. Jai Chand Ranka let out a shop bearing No. AMC-349NI1 situated at Dargah Bazar, Ajmer on (Besakh Badi Samvat 2018) equivalent to 1961 to Ayal Das and Vadhu Mal son of Asan Das on a monthly rent of Rs. 35/- for running cloths business therein. Subsequently, on account of death of Ayal Das at the request of Vadhu Mal the name of Kanhaiya Lal son of Vadhu Mal was substituted in the tenancy and the tenancy was changed in the name of M/s. Vadhu Mal Kanhaiya Lal on monthly rent of Rs. 45/- w.e.f. (Miti Besakh Badi Samvat 2031) corresponding to April 7, 1974. These averments are made in paragraph 1 and 2 in the plaint. 4. The plaintiffs claimed eviction on two grounds; firstly, on the personal bona fide necessity as according to the plaintiffs Mr. Poonam Chand Ranka son of Mr. Hem Chand Ranka had passed his MBBS Examination and the plaintiffs wanted him to start his own dispensary and chemist shop therefore, the shop in question was required for their personal use. 4. The plaintiffs claimed eviction on two grounds; firstly, on the personal bona fide necessity as according to the plaintiffs Mr. Poonam Chand Ranka son of Mr. Hem Chand Ranka had passed his MBBS Examination and the plaintiffs wanted him to start his own dispensary and chemist shop therefore, the shop in question was required for their personal use. Another ground taken was that of default in payment of rent as according to the plaintiff the defendant No. 1 to 3 had paid the rent of the suit property in question only up to 18.12.1975 and had failed to pay anything thereafter in spite of demands and a sum of Rs. 270/- for rent and mesne profit up to 12.6.1976 had fallen due and therefore, according to the plaintiff defendant No. 1 to 3 have committed default of three months in making the payment of rent and liable to be evicted from the suit premises only on these two grounds. 5. The defendants contested the suit and the suit was decreed as aforesaid by both the courts below. 6. The arguments of the learned counsel for the parties were heard at length at bar. 7. Mr. B.L. Mandhana, the learned counsel for the defendant tenant argued on two points; one that the suit was premature and bar of Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (herein after referred to as the Act') of 1950 and second that the personal bona fide necessity of the plaintiffs had completely eclipsed in view of son of the plaintiff No. 1 Dr. Poonam Chand Ranka having joined Government service as not available to occupy the said property in question and therefore, the eviction on that count was uncalled for. Lastly, he also contested on the ground of default. Learned counsel for the appellants also pointed out that an application under 0. 41 Rule 27 CPC was filed by the tenant in this Court for bringing additional evidence on record in the form of Dr. Poonam Chand Ranka having joined the Government service with reference to contention No. 2 as aforesaid. He also submitted that in view of this, if the said application is allowed the impugned order also deserves to be set aside and the matter also deserves to be remanded back to the trial court for deciding the issue of personal bona fide necessity again. 8. He also submitted that in view of this, if the said application is allowed the impugned order also deserves to be set aside and the matter also deserves to be remanded back to the trial court for deciding the issue of personal bona fide necessity again. 8. As against this, Mr. Sanjay Joshi, the learned counsel for the plaintiff respondents vehemently submitted that none of the issues which are being argued and insisted upon by the learned counsel for the appellants has either been raised or argued before the courts below. He further submitted that the issue relating to suit being premature was neither raised in the written statement nor in the memo of appeal before the first appellate Court or even this Court and therefore, he submitted that the said issue cannot be allowed to be raised at this stage. This is controverted by the learned counsel for the appellants by submitting that the said issue goes to the root of the matter and being a question of law can be raised at any stage including this stage of arguments of the present second appeal. 9. This Court is of he opinion, that this issue or ground of Section 14(3) of the Act which creates a bar against the suit for eviction on the ground of personal bona fide necessity of the property let out for commercial purposes before a period of five years from the date of tenancy, is not only a question of law but is a mixed question of facts and law. Whether the change in tenancy would amount to new tenancy or not, whether it is for commercial purposes or not and whether the eviction is being sought on the ground of personal bona fide necessity all are essentially questions of facts and evidence and based on such evidence and facts, the inference drawn therefrom may give rise to the question of law as to whether the bar under Section 14(3) of the Act is attracted in the case in hand or not. 10. In the present case, as contended by the learned counsel for the appellants tenant that paragraph No. 2 of the plaint as extracted hereinabove, that the ''name of Kanhaiyalal was substituted in the tenancy and the tenancy was changed into the name of M/s. Vadhu Mal Kanhaiyalal on a monthly rent of Rs. 10. In the present case, as contended by the learned counsel for the appellants tenant that paragraph No. 2 of the plaint as extracted hereinabove, that the ''name of Kanhaiyalal was substituted in the tenancy and the tenancy was changed into the name of M/s. Vadhu Mal Kanhaiyalal on a monthly rent of Rs. 45/- w.e.f. Miti Badi Besakh Samvat 2031 corresponding to April 7, 1974" was itself enough admission on the part of the plaintiffs themselves to establish a new tenancy having come into being on 7.4.1974 and the shop in question having been let out for commercial purposes, i.e., running of cloths business was also undisputed and therefore, the suit filed by the plaintiffs within five years of tenancy namely on 6.4.1976 was premature and barred by law.In the absence of any issue having been framed by the trial Cowt and the parties leading evidence thereon naturally, it cannot be said that by itself, these averments would establish new tenancy. The words the name of Kanhaiyalal was substituted in the tenancy and the tenancy was changed into the name of M/s. Wadhu Mal Kanhaiyal Lal "(Spelling of Wadhumal in plaint is different from Vadhumal in memo of Second Appeal) indicates that in the existing and continuous tenancy of Ayal Das Vadhu Mal, this substitution of name and change of name and style of tenancy was done on account of death of Ayal Das. From the angle of plaintiffs, this need not necessarily mean that a change of tenancy took place and it could have been certainly a matter of debate and evidence before the trial Court. In. the absence of this issue having been raised in this matter, it would not be legally correct to allow this issue to be raised at the stage of final hearing of the second appeal in the instant case. Reliance is placed on the decision of Hon'ble Supreme Court in the case of K. Chelliah Servai v. P. Muthusami Servai, 1995 (Suppl.) (1) SCC 202 wherein the Hon'ble Supreme Court has held that it was not open to the High Court to have gone into a question which was neither pleaded nor raised or dealt with by the trial Court and the lower appellate Court. The High Court, in the facts and circumstances of this case, exceeded the jurisdiction vested in it under Section 100, CPC. The High Court, in the facts and circumstances of this case, exceeded the jurisdiction vested in it under Section 100, CPC. Similar is the view expressed by this Court in the case of Ravi Kumar v. Gauri Shankar and others, 2006 (1) WLC (Raj.) 142 and Ram Lal & Ors. v. Girraj & Ors., 1992 (2) WLC (Raj.) 683 .Therefore, this Court is of the view, that this question or ground of attack on the judgments and decree of the lower Courts on the strength of Section 14(3) of the Act, cannot be allowed to be raised at this stage. 11. Mr. Sanjay Joshi, the learned counsel for the plaintiff-respondents has also drawn the attention of this Court towards the judgment of this Court in the case of Late Mahadev and Ors. v. Babu Lal and Ors., 2006 (4) RRD 1868 (Raj.) wherein this Court held that the words in Section 14(3) are "no suit shall lie against a tenant" and not "no suit shall be instituted". The word "Instituted" denotes a point of time whereas the word "Lie" denotes a period of time. Therefore, even if a suit is instituted within a period of five years, it may be held to be irregularly instituted suit but if decree of eviction is passed in such a suit after five years, the said irregularity gets cured over the period, by lapse of time and the purpose of protection given to the tenant under Section 14(3) of the Act is achieved and such decree passed after five years cannot be said to be hit by Section 14(3) of the Act and cannot be declared to be a nullity for this reason. In the present case, admittedly the decree has been passed much after a period of five years, therefore, even if it was taken to be a case of a new tenancy, the said ground is not available to the tenant appellants for setting aside the decree. 12. Regarding question of bona fide necessity, Mr. Mandhana, the learned counsel for the appellants urged that in view of son of plaintiff No. 1 Dr. Poonam Chand Ranka having joined the Government job and since. 12. Regarding question of bona fide necessity, Mr. Mandhana, the learned counsel for the appellants urged that in view of son of plaintiff No. 1 Dr. Poonam Chand Ranka having joined the Government job and since. the plaintiffs have failed to file any better particulars with regard to his Government job in response to application under Order 41, Rule 27 filed in this Court, his remaining period, his willingness to leave the Government job and to sit in the suit shop in question for running dispensary, it should be taken that the alleged bona fide necessity for the shop in question has completely wiped out and therefore, in view of this subsequent development, the decree for eviction deserves to be set-aside. This issue is contested by the learned counsel for the respondents on the strength of certain judgments of the Hon'ble Supreme Court and this Court to the effect that the crucial date for deciding requirement of landlord as to personal necessity is the date of the application for eviction, i.e., the date of filing of the suit and subsequent developments during post petition period cannot be taken into account. In the case of Gaya Prasad v. Shri Pradeep Srivastava, 2001 WLC (SC) Civil 201: 2001 (2) SCC 604 : AIR 2001 SC 803 , the Hon'ble Supreme Court held that this is so and more so after lapse of 23 years of litigation kept protracted by tenant, since landlord or any member of his family requiring premises for personal need cannot sit idle for such long period nor can there be an end to such post petition developments multiplying as time passes on and therefore, the premises needed for setting up a clinic for landlord's son in that case also was held to be not eclipsed by the subsequent development of son joining Provincial Medical Service and therefore, the Court upheld the decree of eviction. Similar is the case of G.C. Kapoor v. Nand Kumar Bhasin and Others, 2002 WLC (SC) Civil 91 : (2002) 1 SCC 610 and also the judgment of this Court in the case of Dharam Chand v. Karam Chand (Now Dead) through L.Rs., 2001 (5) WLC (Raj.) 557 . 13. In view of this legal position and also in view of the averments made in the application filed under 0. 13. In view of this legal position and also in view of the averments made in the application filed under 0. 41 Rule 27 CPC, it cannot be said that the personal bona fide necessity of the plaintiff's suit stood eclipsed or that the issue is required to be decided de novo by the trial Court. Therefore, this contention of the learned counsel for the appellant tenants also fails. The application filed under 0. 41, Rule 27 CPC of the appellant tenants is liable to be dismissed and the same is accordingly dismissed. 14. As far as ground of default in payment of rent is concerned, the two Courts below have concurrently held that the default on the part of defendant tenant in making the payment of rent over a period of six months has been committed. The said finding does not call for any interference by this Court in the instant second appeal. 15. In view of the above, I do not find any force in this Second appeal and the same is hereby dismissed. The decree be complied with within a period of three months. 16. There is no order as to costs.Appeal Dismissed. *******