SURENDRA KUMAR JAGGI Vs. AHMED FAROOQ

JUDGEMENT

(1.) THE defendant tenant - Surendra Kumar has filed the present second appeal under Section 100 of the Civil Procedure Code in this Court on 3/1/2011 being aggrieved by the concurrent decree of eviction dated 1/12/2010 passed against him in respect of suit premises, shop no.3 in Abdulla Building 'B', Station Road, Jodhpur, which was initially let out to him at the monthly rent of Rs.225/- and the eviction suit was filed by the respondent-plaintiffs � Ahmed Farooq & others for the bonafide and reasonable need of the suit shop for Abdul Tahir s/o Ahmed Farooq, who in the year 1989 had done his M.Com. and wanted to start his steel and wooden furniture business in the said suit shop.

(2.) THE eviction suit in the present case has a chequered history of remands and re-decision in the courts below and brief discussion of the important dates may be relevant here. After institution of the suit on 11/1/1989 on the ground of default and personal bonafide need, on 9/7/90 written statement was filed by the defendant tenant and on 8/11/1990, amendment application under Order 6 Rule 17 CPC was filed by the tenant with the allegation that another shop in the same building of the plaintiff had become available and such amendment was allowed by the learned trial court on 15/11/1990. On 7/1/1991, rejoinder to the written statement was filed by the plaintiffs and issues were framed on 13/1/1991. On 22/7/1991, another application under Order 7 Rule 10 CPC was filed by the tenant for returning the plaint since the court fees on correct valuation of the suit premises was not paid according to him. The said application was allowed on 6/3/1992. Another application for amendment under Order 6 Rule 17 CPC was filed by the tenant on 17/11/1992 that one more shop no.2 had become available to the plaintiffs, which was earlier occupied by the tenant � Trilok Chand. However, said application was rejected by the learned trial court on 1/12/1993. On 19/5/1997, the suit filed by the plaintiffs was decreed and though bonafide need of the plaintiffs was not found to be established, but defendant-tenant was found to be defaulter in payment of rent. On 25/7/2002, landlord's appeal was partly allowed and matter was remanded back to the learned trial court framing another issue that under what circumstances the landlord had transferred/sold the shop no.2, which was vacated by Trilok Chand. Upon remand, the learned trial court decreed the suit of eviction on 30/9/2003 even on the ground of bonafide necessity of Abdul Tahir. The appeal filed by the tenant against the said decree was partly allowed on 10/11/2003 as the tenant filed another amendment application during pendency of the appeal before first appellate court that Abdul Tahir, for whose need the eviction was sought has started business in the name of Union Enterprises with the partnership of one Subhash Vaswani and Mohd. Asif. Both the parties filed second appeals before this Court and the first appellate court was directed to decide the appeal again after amendment of the plaint again. On 22/8/2006, the suit came to be decreed fully in favour of respondent-landlord and on 1/12/2010, the appeal preferred by the tenant also came to be dismissed and thus, the concurrent decree of eviction was passed by both the courts below against the defendant tenant.

(3.) MR. M.C.Bhoot, learned Senior Advocate assisted by Mr. Arpit Bhoot appearing on behalf of the defendant-tenant, Surendra Kumar, appellant herein, urged that the courts below have perversely held that there was a bonafide requirement of the suit shop for Abdul Tahir since he was already gainfully employed and was doing business with his father-in-law cum maternal uncle Mohd. Ateek and had their business premises at 17, Light Industrial Area, Jodhpur and Abdul Tahir is an Income Tax assessee and has a regular PAN Card in his name, which he admitted in his statement before the courts below. He also submitted that there were contradictions in the statements of P.W.5 � Abdul Tahir himself and P.W.-3 Mohd. Haroon, his elder brother and from time to time the said Abdul Tahir had engaged himself in different businesses in three firms in the name of M/s Union Enterprises, M/s Jodhpur Allegiance and M/s Best Associates, therefore, despite remand the learned trial court wrongly decided issue no.11A against the defendant-tenant and since alleged bonafide need is nothing but whimsical desire of the landlord, the eviction decree deserves to be set aside and judgments under appeal give rise to substantial question of law, which deserves to be framed and decided in favour of appellant-defendant-tenant. Mr.M.C.Bhoot, learned Senior Advocate relied upon the following judgments in support of his contentions.