GOPAL RAM Vs. GOVIND RAM

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The defendant-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 21.12.2011 passed by Additional District Judge, Jhunjhunu (Rajasthan) in Civil Regular Appeal No.18/2005 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 8.10.2004 passed by the trial Court i.e. Civil Judge (Junior Division) Jhunjhunu in Civil Suit No.6/1996 whereby the suit for eviction filed by the plaintiffrespondent was decreed.

(3.) Brief relevant facts for the disposal of this appeal are that the respondent-landlord filed Civil Suit No.6/1996 in the trial Court against the tenant-appellant for eviction from the suit shop and for recovery of arrears of rent with the averment that the suit shop was let out to the appellant on 1.7.1990 at the monthly rent of Rs.100/-. It was also averred that the suit shop is required by the respondent bonafidely and reasonably for the use and occupation of2 his son namely Shri Kamlesh to do the business of General Merchandise because he is a jobless educated person having sufficient experience to do the business of General Merchandise. The appellant filed written statement and the requirement shown by the respondent was denied mainly by saying that the son of respondentShri Kamlesh is an authorised Government Dealer of Kerosene Oil of Village Narsinghpura and he is earning several thousands rupees per month from that business. It was further averred that Shri Kamlesh has income from money-lending and dealing in buying and selling of shares also. It was further averred by the appellant that the measurement of suit shop is only 5 feet x 5 feet and the same is not suitable and sufficient for General Merchandise business whereas the appellant is doing tailoring job in it and he has no other premises for his use and occupation. It was also averred that the appellant and his family members are entirely dependent on the earnings from the tailoring job which the appellant is doing in the suit shop. On the basis of pleadings of the parties, necessary issues were framed by the trial Court. Both the parties adduced oral as well as documentary evidence and the learned trial Court after hearing both the parties and appreciating and evaluating the evidence available on record decreed the suit. It was held by the Court that the requirement shown by the respondent is bonafide and reasonable as he has no other vacant shop of his own which can be used to establish Shri Kamlesh in his life and to earn his own independent income. It was also held that the appellant did not make no serious efforts to take any other premises for his use and occupation either on rent or3 otherwise although alternative accommodations are easily available and, therefore, if decree is refused the respondent will face more hardship in comparison to the appellant. So far as partial eviction from the suit shop is concerned, it was held that both the parties agreed that looking to the measurement of the suit shop if partial eviction is ordered need of any of parties will be satisfied. Feeling aggrieved, the appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide impugned judgment and decree dated 21.12.2011. Learned appellate Court concurred with the findings arrived at by the trial Court. During pendency of the appeal, tenant-appellant filed an application under Order 6 Rule 17 CPC for amendment in written statement stating therein that a shop belonging to respondent which was previously in the tenancy of one Shri Madhu Sudan Khaitan has been vacated during pendency of the appeal and the same has been occupied by another son of respondent-Shri Rajneesh whereas Shri Kamlesh, for whose requirement the present suit has been filed, has occupied another shop of respondent and he has started doing business in that shop, and therefore, the requirement has been fulfilled and the subsequent facts which have arisen after the judgment of the trial Court are required to be pleaded and incorporated in the written statement filed by the appellant. Reply to the application was filed by the respondent in which it was averred that the shop which was previously in the tenancy of Shri Madhu Sudan Khaitan has been vacated but this shop is now in the occupation and use of Shri Vinod, an another son of the respondent and this statement of appellant is4 not correct that in the vacated shop another son of respondent-Shri Rajneesh is doing business whereas Shri Kamlesh, for whose requirement the present suit has been filed, has now occupied the shop in which previously the respondent was doing his business. Both the parties filed affidavit in support of their respective contentions and the learned appellate Court dismissed the application for amendment vide order dated 13.5.2011. Still dissatisfied, the tenant-appellant is before this Court by way of this appeal. During pendency of this appeal on behalf of appellant an application under Order 41 Rule 27 CPC for production of additional evidence in the form of an affidavit of Shri Puran Mal Saini son of Shri Banwari Lal, certified copy of judgment dated 4.5.2011 passed by Additional District Judge, Jhunjhunu in Civil Regular Appeal No.5/2006 and photostat copy of judgment dated 26.5.2006 passed by a Coordinate Bench of this Court in SB Civil Second Appeal No.391/2011 was filed.