KHUSHALCHAND Vs. DILIP KUMAR

JUDGEMENT

(1.) WHILE admitting this appeal, the following substantial questions of law were framed and it was ordered that the case shall be heard finally in motion in the month of July, 2007 :

(2.) THIS is defendant's appeal against the concurrent judgments and decree of eviction passed against him by the Courts below under section 12 (1) (f) of the m. P. Accommodation Control Act (for short the Act ).

(3.) FACTS necessary for the disposal of this appeal are as under. Nathulal filed an eviction suit against the appellant on the allegation that he is a tenant in respect of the suit shop more particularly described in the plaint. The monthly rent of the premise was Rs. 722/ -. One of the grounds taken for eviction was that the suit shop was required for continuing business of Dilip, who was joined as plaintiff No. 2. According to the plaint allegation, Dilip was doing business of plastic toys and other articles made of plastic. It was alleged that suit shop was on the ground floor and on the first floor Plaintiff No. 1 had his office and second floor was used for residential purpose. It was alleged that Dilip was doing business as aforesaid in a place below the staircase which was not sufficient. The suit was contested by the appellant by denying each and every material fact pleaded in the plaint. On the basis of the pleading of the parties, trial Court framed issues and allowed parties to adduce evidence. Trial Court after appreciating the evidence found that the plaintiff had established the bona fide need of Dilip as a result a decree for eviction was passed against the appellant under section 12 (l) (f) of the Act. Appellant challenged the said judgment and decree in First Appeal. During the pendency of the F. A. the appellant moved applications, one under Order 6, Rule 17 and another under Order 41, Rule 27 of the Civil Procedure Code. By application under Order 6, Rule 17, the appellant sought amendment in the written statement to bring on record subsequent events. According to the appellant during the pendency of the lis, Plaintiff No. 1 expired, therefore, the accommodation on the first floor was available for continuing the business of Dilip and thus, the need of Dilip stood satisfied. By application under order 41, Rule 27, the appellant sought permission to adduce additional evidence. In another suit decree for eviction against the another tenant of non-residential accommodation was passed in favour of Dilip. Therefore, also the need set up in the suit out of which this appeal arises, stood satisfied. The First appellate Court allowed the application under Order 6, Rule 17 and remanded the case for adjudication by the trial Court. However, application under Order 41, rule 27 was rejected on the ground that the judgment passed in favour of Dilip had no bearing on the controversy and issue involved in the case because Dilip sought eviction on the ground of bona fide need of his son Rohit. It seems that the appellant did not challenge that part of judgment whereby his application under Order 41, Rule 27 was rejected by the lower appellate Court. After the remand, the trial Court after affording opportunity of leading further evidence to the parties, once again found that the need of Dilip was existing despite the death of Plaintiff No. 1 and notwithstanding the space available in the first floor which was being used by Plaintiff No. 1 for running his office as lawyer during his life time. Thus, suit was decreed. The matter was carried in appeal by the appellant and during the pendency of the First Appeal, the appellant moved an application under Order 6, Rule 17 seeking further amendment in the written statement. He sought amendment to the effect that the judgment passed in favour of Dilip in another application was affirmed by this Court as a result Dilip obtained possession from his tenant and he has started his own business in the name and style of Nisha Art Gallery in the said premises along with his son Ranjit. Thus, according to the appellant need of plaintiff Dilip stood satisfied and no decree for eviction could be passed against the present appellant. Learned First Appellate court by the impugned judgment and decree not only rejected the application under Order 6, Rule 17 but also affirmed the findings of fact recorded by the trial court. Hence this appeal on the substantial questions of law as mentioned herein above.