LALARAM Vs. LEGAL REPRESENTATIVES OF KESRIMAL SONI

JUDGEMENT

(1.) KOCHHAR, J. - This appeal under section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 28. 4. 1979 passed by the learned Additional District Judge, Sirohi in Civil Appeal No. 44/75 arising out of the judgment and decree dated 22. 8. 77 passed by the learned Munsif, Sirohi in Civil Original Suit No. 112/73. The brief facts are as under: -

(2.) SHRI Kesrimal Soni (the plaintiff), who was the predecessor in-interest of the present respondents, had filed a suit against the appellant-defendant Lalaram for his ejectment from the shop in dispute on the grounds of default in payment of rent, requirement for carrying on repair work and for bonafide personal necessity. The suit was contested by the defendant-appellant, who denied the grounds of eviction and also contested the suit on the ground that his tenancy had not been validly terminated and further that he was the tenant of Swami Narain Mandir and not of the plaintiff and that the above said Mandir was a necessary party. After framing the necessary issues and recording the evidence produced by the parties, the learned trial court came to the conclusion that the defendant-appellant was the tenant of the plaintiff and that the Mandir was not a necessary party and further that the defendant-appellant had deposited the arrears of rent as also the future rent and, as such, no decree on the ground of default in payment of rent could be passed against him. The learned trial court further came to the conclusion that the plaintiff had been able to prove the other two grounds and, as such, was entitled to a decree for eviction in his favour and against the defendant-appellant. Consequently, the suit filed by the plaintiff was decreed against the defendant-appellant. Feeling aggrieved, the appellant-defendant challenged the above said decree of eviction by filing an appeal. During the pendency of the appeal, the plaintiff died and the present respondents were brought on record as his legal representatives. After hearing the learned counsel for the parties, the learned first Appellate Court came to the conclusion that the learned trial court erred in holding that the plaintiff had proved that the shop was required for carrying on repairs and, as such, upset the finding of the learned trial court on that issue. It was contended before the learned first Appellate Court that the plaintiff had pleaded that the shop in dispute was required by him for his son Chhogalal, who had been carrying on this business in the shop in the possession of the plaintiff himself, but the relations between him and Chhogalal having got strained. Chhogalal could not continue to carry on business in the same shop in which the plaintiff had been carrying on business and that during the pendency of the appeal, the plaintiff having died, the said ground ceased to exist and, as such, the appeal should be accepted and the suit filed by the plaintiff should be dismissed. The learned first Appellate Court repelled this argument on the ground that he could not take into consideration the event subsequent to the decision of the suit by the learned trial court and further that the plaintiff had other sons also and the shop in dispute might be required by any one of them. In these circumstances, the appeal filed by the appellant- defendant was dismissed and the decree on the ground of personal requirement of the plaintiff passed by the learned trial court was upheld. Feeling aggrieved, the defendant-appellant was approached this court by filing this second appeal.