MOHD. ASHRAT AHANGER Vs. GHULAM MOHD SHAH

JUDGEMENT

(1.) THIS is defendant's appeal against whom a decree for ejectment from a shop has been passed by the trial court and confirmed by the lower appellate court.

(2.) RESPONDENTS 1 and 2 herein, who are father and son respectively, brought a suit for ejectment against the appellant and respondent No.3 herein on the twin ground of personal requirement and default in payment of rent. It was alleged that both father and son reasonably required the shop for their business. The suit was resisted by the appellant and respondent No.3 inter alia on the grounds that neither respondents 1 and 2 reasonably required the suit shop for their personal occupation, nor was there any default in payment of rent. The appellant, for whom respondent No.3 had acquired the shop as his guardian, had been paying the rent regularly. Some other pleas, including one regarding invalidity of the notice for ejectment, were also raised in defence. The trial court framed a number of issues and eventually came to the conclusion that neither the appellant, the tenant, was in arrears of rent nor had he committed any default in payment of rent, creating an indefeasible right in the landlord to eject him. It returned a finding that whereas respondent No.1 did not require the shop at all, respondent No.2 did require it for expanding his business by installing a few more machines in it. On the question of comparative advantage and disadvantage also, it held in favour of respondent No.1. The trial court consequently passed the decree prayed for.

(3.) DURING the pendency of this appeal an application under Order 41, Rule 27 of the Code of Civil Procedure was moved by the appellant praying that he may be allowed to lead evidence on an event which had taken place subsequent to the passing of the decree by the lower appellate Court, in that, the second respondent had sold the machinery installed in his own shop to one Abdul Gani Wadhera and had also let out the said shop to him. It was also averred that the second respondent had Joined Government service and no more required the suit shop for his personal occupation for expanding his business by installing some additional press machinery in the suit shop. On this application this court allowed the parties to lead evidence. Whereas the appellant examined a few witnesses including Abdul Gani Wadhera, the respondent chose not to lead any evidence in rebuttal.