OM PRAKASH SHARMA Vs. KISHUN MISTRY

JUDGEMENT

(1.) This second appeal is at the instance of the defendant respondent which arises cut of a suit for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act. The plaintiff institute a suit on 3.10.1977 for eviction of the tenant from, a shop where the defendant carries on retail sale of medicines on the (sic) of default in the payment of rent from January 1975 to September 1977. Rent payable was at the rate of Rs. 40/ - per month by the last day of the mouth next following when it falls due. On 24.3.1981 the plaint was amended adding a further ground for eviction i.e., personal necessity. It has been averred in paragraphs (4a), (4b) and (4c) of the plaint that his two sons have engaged themselves in various business and they have no independent premises where -from they can operate. They do blacksmithy and undertake repair work of tempos and the premises in question is required for storing valuable tools for effectively carrying on their trade and business. The defendant, on the other hand, stated that after December 1974 the plaintiff slopped realising rent for several months and in the month of March 1977 he paid a sum of Rs. 2,000/ - towards the arrears of rent as well as advance rent. He has challenged the service of notice under Sec. 106 of the Transfer of Property Act. in the additional written statement it was averred by the defendant:

(2.) At the time of admission of the appeal the substantial questions of law framed were whether the lower appellate court ought to have permitted the parties to examine an expert, having observed the necessity of expert's evidence to prove the genuineness of Ext. A, the receipt, and ought not to have decided the question without the aid of such evidence and the other question was "whether the finding on the question of personal necessity is illegal and not binding on the appellant".

(3.) The court of appeal below found that the story of payment of a sum of Rs. 2000/ - by the tenant to the landlord on 13.3.1977 is absolutely false and the tenant is liable to be evicted from the suit premises on account of non -payment of rent by reversing the finding of the trial court that the said sum of Rs. 2000/ - was actually paid. It has further found that the requirement pleaded as to personal necessity has been proved and the said requirement is bona fide for the use and occupation of the plaintiff's two sons for their own business.