AMIN Vs. KAILASH CHAND

JUDGEMENT

(1.) Challenge in the instant second appeal filed by the appellant plaintiff under Section 100 CPC has been made to the judgment and decree dated 23.05.2011 passed by the Court of Additional District Judge No.1, Sikar, District Sikar (Raj.) [for short 'the First Appellate Court'] in Civil Regular Appeal No. 77/2018 whereby the Additional District Judge No.1, Sikar while dismissing the appeal filed by the appellant plaintiff affirmed the judgment and decree dated 03.12.2005 passed by the Court of Additional Civil Judge (Jr. Division) No.2, Sikar [for short' the trial Court'] in Civil Suit No. 158/2003 by which suit filed by the plaintiff appellant for eviction of the defendant was dismissed.

(2.) The facts summarized in brief are that plaintiff filed a suit for eviction against the defendant mainly on the grounds of default in payment of rent, bonafide necessity, non-user of the shop in dispute by the defendant and also availability of alternative accommodation with the defendant. Written statement of denial was filed by the defendant. On the basis of pleadings of the parties, the trial Court framed eight issues and one another issue as l(a). The plaintiff in support of his case produced seven witnesses and got exhibited some documents. The defendant in support of his case produced four witnesses and got exhibited some documents. The trial Court vide its judgment and decree dated 03.12.2005 dismissed the suit filed by the plaintiff. The plaintiff aggrieved and dissatisfied with the judgment and decree dated 03.12.2005 passed by the trial Court preferred an appeal before the First Appellate Court which was dismissed vide judgment and decree dated 23.05.2011.

(3.) Learned counsel for the plaintiff/ appellant argued that both the courts below dismissed the suit for eviction filed by the plaintiff/appellant. The application under Order 41 Rule 27 CPC had remained undecided, the same has caused prejudice to the plaintiff/appellant and the non-disposal of the application led to miscarriage of justice.