CHUTTAN Vs. MOHNI BAI AND OTHERS

JUDGEMENT

(1.) Tenant is the appellant in the instant second appeal. Learned Munsif Bundi decreed the suit for eviction instituted by the respondent landlord in respect of tenanted shop on May 18, 1994 on the ground of reasonable and bonafide need of the landlord. The judgment and decree of the trial court was affirmed by the first appellate court on Feb. 10, 1998. Now the concurrent findings of facts have been called in question by the tenant. An application under Order 41 Rule 27 Code of Civil Procedure has also been filed by the tenant along with the second appeal with the averments that the landlord has recently constructed a Godown in their house and are storing utensils. Thus the need of the landlord comes to the end and the instant second appeal deserves to be allowed in the changed circumstances. Photographs of the alleged new construction and affidavits of Chuttan, Malkuddin and Mohd. Farooq have been annexed. Landlord in the reply to the application stated that no godown as alleged has been constructed. In fact Kailash Chand who is doing business has converted his room in the godown as back as in 1985 to the knowledge of the tenant. The accommodation of godown is irrelevant for deciding the controversy in respect of requirement of the shop in dispute. The disputed shop is required for Rajendra Kumar who is doing business with Gopal in a rented shop. It is wrong to say that Rajendra Kumar is doing business in the godown. The application is wholly misconceived. Affidavit of Gopal Lal has been filed in support of reply.

(2.) I have given my anxious consideration to the rival submissions and carefully perused the record.

(3.) It is well settled that the post-decree subsequent events if substantially change the circumstances of the parties, may be considered by the appellate court. A close look at the application filed by the tenant demonstrates that he has not mentioned the year of alleged new construction. In para 2 of the application hand written word 'recently' has been added. Even the affidavits do not disclose the year of construction. On the other hand landlord specifically averred that the godown was constructed in the year 1985 to the knowledge of the tenant and Kailash Chand has been using it for the last thirteen years. In view of this it is difficult to agree with the tenant that on the basis of subsequent events interest of Rajendra Kumar in the shop is getting extinguished. I do not find any merit in the application it is accordingly dismissed.