AMOLAKCHAND Vs. SAMPATRAJ

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit for possession of the shop in dispute by ejectment and Rs. 219/2/-on account of arrears of rent. It appears that the plaintiff instituted the suit against the defendant on the ground that he had not paid rent for 10 months and 13 days and was, therefore, a defaulter, and further that the shop was required by him for his personal use. The defendant denied that he was a defaulter and also the allegation that the shop was required for his personal use. The learned Judge of the trial court, after recording the evidence and framing necessary issues, decreed the suit for ejectment on the ground that the defendant was a defaulter to the extent of Rs. 219/2/-and Rs. 50/- on account of compensatory costs. Before the learned District Judge, on appeal, it was contended that he was ready and willing to pay rent, in fact had actually paid the amount due up to the date of the suit, and therefore, no decree for ejectment should be passed against him. The question of personal necessity was also argued in his court and it was urged that the plaintiff had six shops and that it had not been proved that he required the shop in dispute for his bona fide use. The learned District Judge found that the rent due had already been deposited and that it had not been proved that the shop was required by the plaintiff for his personal use.

(2.) THE learned counsel for the appellant urges that under sec. 13 of the Rajasthan Premises (Control of Rent and Eviction Act 1950) decree for ejectment must be passed if it is found that the premises are required reasonably and bona fide by the landlord for the use or occupation of himself or his family. Accordingly, since it is contended that the new Act was being made applicable, an opportunity should have been given to the plaintiff to establish by leading evidence that the shop in question was required by him bona fide for his personal use. This may be correct where the plea regarding personal necessity is raised. In the present case, the plaintiff had alleged in para No. 3 of the plaint that the shop in dispute was required by him for his own use. This allegation was controverted by the defendant in his jababdava. A number of issues were framed and although the case remained pending in the court below for some time, the attention of the trial court was never drawn to the fact that it had omitted to frame issue on an important point emerging from the pleadings of the parties. I take it that this omission on the part of the plaintiff was necessarily due to the fact that he did not wish to press his case on this ground. THE learned counsel for the appellant has conceed-ed before me that this is correct in as much as he was under the impression that so long as he succeeded on the other question, namely the one relating to the defendant being a defaulter, it was not necessary for him also to prove that the shop was required for his personal use. THE procedure adopted in the court below, if what is stated on behalf of the appellant is correct, was highly defective, as the plaintiff is not in a position to decide for himself whether he is likely to succeed on any particular point raised by him and he should consider it his duty to press all the points which are taken in the pleading and produce his evidence on them. If he fails to do so, he can only blame himself. In the circumstances, the contention raised by the learned counsel that he should now be given an opportunity to prove that the premises are required for his own use, is altogether without force. From the plaintiff's own statement, which cannot be improved by any amount of evidence which he might have produced, it appears that he is the owner of a number of shops. This was admitted by him in his cross-examination and the learned counsel for the respondent, who also appeared before the learned District Judge, states that he conceded that he owned six shops. Even if that statement may be disputed, as it is in this court, the fact remains that he is owner of a number of shops. It now turns out from what the learned counsel for the respondent has stated at the Bar that two out of these shops had been recently vacated and are at the moment untenanted. THE appellant is present in person and has admitted that this is correct. In the circumstances, it is open to him to occupy any one of these shops if he likes for his own business. It is, however, stated by the learned counsel for the plaintiff that these shops are not situated in the proper business quarters and he proposes that the defendant should be driven to occupy one of these shops. This, however, cannot be permitted. THE learned counsel next urges that, at any rate, the decree for the rent which was in arrears should have been upheld, and that if this is not done, he will not be in a position to recover the total amount due. THE argument is only technically correct but is without substance, in as much as, all the amount that was due has already been paid to the appellant. If any further amount falls due, it is indeed open to him in law to file a fresh suit.