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2009 DIGILAW 1592 (RAJ)

Ashok Gupta v. Oswal Singh Sabha

2009-07-13

GOPAL KRISHAN VYAS

body2009
JUDGMENT Hon'ble Vyas, J.—In this second appeal, the appellant is challenging the judgment dt. 1.8.2008 passed by the A.D.J. No.3, Jodhpur in Civil Appeal No.51/07, whereby, the learned lower appellate Court confirmed the judgment and decree dt. 19.4.2007 passed by the Civil Judge (Jr.Dn.), Jodhpur City, Jodhpur, by which, the trial Court decreed the suit in favour of the respondent-plaintiff and passed decree for eviction against the appellant-defendant. 2. The respondent-plaintiff Oswal Singh Sabha preferred suit for eviction against the appellant-defendant from the house situated in Ghoron-ka-Chowk, Jodhpur for two grounds viz., default in payment of rent and non-user of the house. The trial Court framed the following issues : ^^1- vk;k izfroknh us ebZ 1998 ds i'pkr~ dk fdjk;k oknh dks vnk ugha dj fdjk;k vnk;xh esa O;frØe fd;k gS\ ftEes oknh----- 2- vk;k izfroknh 6 ekg ls vf/kd vof/k ls oknxzLr edku esa fuokl ugha dj jgk gS vkSj fcuk ;qfä;qä vk/kkj ds 6 ekg ls vf/kd vof/k rd mä tk;nkn dks cUn dj j[kk gS\ ftEes oknh----- 3- vk;k izeksn dqekj xqIrk o Å"kk xqIrk dks i{kdkj ugha cuk;s tkus ls oknh dk okn [kkfjt fd;s tkus ;ksX; gS\ ftEes izfroknh----- 4- vuqrks"kA** <span> 3. Issues No.1, 2 and 3 were decided against the defendant and while granting relief, though issue No.1 with regard to default in payment of rent is decided against the defendant-appellant, but, benefit of first default was granted to him. However, on the basis of the finding upon issues No.2 and 3, the trial Court passed decree for eviction from the said premises within two months. Further, it is ordered that the plaintiff will be entitled for arrears of rent and will be entitled for mesne profits till the date of getting possession of the premises in question. The said decree was passed by the trial Court on 19.04.2007. Thereafter, the appellate Court affirmed the finding arrived at by the trial Court vide Judgment dated 01.08.2008. 4. Learned counsel for the appellant vehemently argued that the respondent-plaintiff failed to prove before the trial Court that from which date the appellant-defendant is not using the house in question. The said decree was passed by the trial Court on 19.04.2007. Thereafter, the appellate Court affirmed the finding arrived at by the trial Court vide Judgment dated 01.08.2008. 4. Learned counsel for the appellant vehemently argued that the respondent-plaintiff failed to prove before the trial Court that from which date the appellant-defendant is not using the house in question. It is also argued that without any specific date and proving before the Court that for last six months the tenant is not using the property no decree can be passed, therefore, both the Courts below have committed error while not considering this aspect of the matter that no specific date from which the appellant-defendant is not using the premises is given. Therefore, the finding arrived at with regard to issue No.2 deserves to be quashed because the finding is perverse and contrary to settled principle of law. 5. I have perused the judgments of both the Courts below and considered the arguments advanced by learned counsel for the appellant. 6. In my opinion, upon the finding with regard to issue No.2 it is obvious that there is cogent evidence on record which shows that the appellant-defendant is residing in Delhi and not living in Jodhpur. On that basis, the trial Court decreed the suit and said finding has been affirmed by the first appellate Court also. It is also admitted position of the case that the appellant-defendant is residing in Delhi but some times he and his family members are coming to Jodhpur and staying in the house in question. In this view of the matter, in my opinion, no question of law emerges for which any interference under Section 100, C.P.C. is warranted. 7. Both the Courts below have categorically found that the appellant-defendant is not residing in the house in question for last six months. That being concurrent finding of fact arrived at on the basis of appreciation of evidence, there is no force in this second appeal. 8. This second appeal is, therefore, accordingly dismissed. However, learned counsel for the appellant submits that the appellant may be given some time to vacate the premises in question. In the interest of justice, three months' time is hereby granted to the appellant to hand over vacant possession of the premises in question to the plaintiff. 8. This second appeal is, therefore, accordingly dismissed. However, learned counsel for the appellant submits that the appellant may be given some time to vacate the premises in question. In the interest of justice, three months' time is hereby granted to the appellant to hand over vacant possession of the premises in question to the plaintiff. For the same, he shall furnish undertaking before the trial Court within 15 days from today.