PREM CHAND GUPTA Vs. RAJ KUMAR

JUDGEMENT

(1.) Heard the learned counsel for the parties. The defendants-tenants are the appellants in this appeal against the judgment and decree of affirmance. The suit has been filed for eviction of the defendants from the suit premises on the ground of default in payment of rent as well as personal necessity. The relationship of landlord and tenant between the plaintiff and defendants is not in dispute. The plaintiff has stated that the defendants are tenants In the suit premises on the basis of Kirayanama dated 13.7.1994 but they have defaulted in payment of rent from 1995 onwards. The plaintiff has also claimed personal necessity of the suit premises for his own occupation for starting a business as there has been partition in the family of the plaintiff. The defendants, however, have denied the assertions of the plaintiff and have claimed that they were earlier the tenants of the father of the plaintiff who had taken Rs. 90,000/- as advance money but even after the expiry of the period of tenancy he had failed to return the said amount to the defendants. It is the further case of the defendants that they paid Rs. 90,000/- afresh to the plaintiff at the time of inception of the tenancy on the basis of Kirayanama dated 13.7.1994 but the suit has been filed before the expiry of the stipulated period of the tenancy and without any offer to the defendants to return the advance money. It is the case of the defendants that the plaintiff wants to grab the total advance money of Rs. 90,000/- alongwith the advance money paid to the father of the plaintiff. The personal necessity of the plaintiff has also been denied and the compromise decree relied upon by the plaintiff for establishing partition has been challenged as showy document.

(2.) The trial court after considering the evidence came to the finding that the defendant had committed default in payment of rent as alleged by the plaintiff. It has also been found that the plaintiff has got bona fide personal necessity of the suit premises for starting his own business. The trial court also repelled the submission on behalf of the defendants that in view of the advance amount of Rs. 90,000/- lying with the plaintiff they could not be held to be defaulter and has recorded specific finding that according to the stipulations in the Kirayanama, the amount of Rs. 90,000/- was by way of security amount paid in advance to be returned to the defendants when they would vacate the suit premises. In appeal, the appellate court reappraised the evidence and concurring with the findings of the trial court held that the defendants had defaulted in payment of the rent of the suit premises for more than several successive two months. It also took into the notice the terms of the Kirayanama and came to the finding that the amount of Rs. 90,000/- was by way of security money taken in advance and there was no stipulation that the said amount was to be adjusted towards rent, The appellate court has also come to the finding that the plaintiff has established his personal necessity of the suit premises. The suit and then the appeal were dismissed on the basis of aforesaid main findings.

(3.) At the time of admitting this second appeal the following substantial questions of law have been formulated for consideration in this appeal:--