LAGAL REPRESENTATIVES OF ABDULLA Vs. PRIYAMBDA SHARMA

JUDGEMENT

(1.) Heard learned counsel for the parties. 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 29.4.2000 passed by the Additional District Judge No. 7, Jaipur City, Jaipur in Civil Regular Appeal No. 20/98 whereby the learned Appellate Court has upheld and affirmed the judgment and decree dated 11.3.1998 passed by the trial Court i.e. Additional Civil Judge (Junior Division) No. 1, Jaipur City, Jaipur in Civil Suit No. 190/92 whereby the learned trial Court has decreed the suit for eviction filed by the plaintiff-respondent.

(2.) Brief relevant facts for the disposal of this appeal are that the respondent-landlord filed a suit in the trial Court against the defendant-appellant Shri Abdulla and one Shri Nanargram for eviction from the suit shop bearing Municipal No. 395 and from an another shop bearing Municipal No. 394 with the averment that suit shop is on rent with the appellant whereas the another shop is in the tenancy of Shri Nanargram and both the shops are required by her so as she can use and occupy them to start her business of general merchandise and printed textile cloths. It was also averred in the plaint that both the shops were purchased by her on 18.2.1992 from the previous owner to use them for her business. The tenant-appellant filed written statement and he denied the requirement shown by the respondent with the averment that her father is a renowned Advocate of Jaipur City having a huge earning by profession of law and she is only child of her father and, therefore, she is not required to do any business or profession to earn and thus, the requirement shown by her for the suit shop is not bona fide and reasonable. It was also averred that the appellant has sole earning source from the suit shop and his whole family is dependent on the earnings made by the business conducted in the same. On the basis of the pleadings of the parties, necessary issues were framed and both the parties produced oral as well as documentary evidence in support of their respective cases. The learned trial Court after hearing both the parties found that the requirement shown by the respondent is bona fide and reasonable. It was also found by the Court that if decree of eviction is not passed more hardship will be faced by the respondent in comparison to the appellant as appellant has four vacant showrooms in his possession whereas no other alternative and suitable accommodation is available with the respondent for her use and occupation and, therefore, he cannot be allowed to say that if he has to be evicted from the suit shop more hardship would be caused to him. In regard to partial eviction from the suit shop, it was found by the trial Court that looking to the requirement shown by the respondent to the effect that both the shops are required, her requirement cannot be fulfilled if decree for partial eviction from the suit shop is passed. As a consequence of the findings arrived at by the trial Court, the suit was decreed. It is to be noted that during the pendency of the suit another tenant Shri Nanargram died and in his place his legal representatives were brought on record and they and landlord-respondent entered into compromise and as a consequence of that adjoining shop bearing No. 394 was vacated and the respondent got vacant possession of the same. Dissatisfied with the judgment and decree passed by the trial Court the appellant filed appeal under Section 96 CPC before the First Appellate Court and the same was dismissed vide impugned judgment and decree dated 29.4.2000. During the pendency of that appeal, appellant moved an application under Order 6 Rule 17 CPC seeking amendment in written statement but the same was dismissed by the Appellate Court vide order dated 3.9.1998. That order was challenged by the appellant by way of SB Civil Revision Petition No. 1595/1998 and the same was allowed and as a consequence of that the application for amendment of written statement was also allowed and in compliance of that the appellant filed amended written statement on 14.12.1998 incorporating therein the further pleadings in the form of Para No. 2 of the additional pleas of the written statement. With the permission of the Court the respondent filed rejoinder to the amended written statement on 11.1.1999. Thereafter, the appellant filed an application under Order 14 Rule 5 CPC on 25.1.1999 praying therein that on the basis of additional pleas taken in the written statement two additional issues are required to be framed. Reply to the application was filed by the respondent on 25.1.1999 itself and that application came to be dismissed by the Appellate Court vide order dated 25.1.1999. Although, the Court citing detailed reasons refused to frame additional issues as prayed by the appellant, but liberty was granted to both the parties to produce additional evidence in the form of affidavits and documents in support of the facts added by the appellant by way of amendment made in the written statement and in the rejoinder filed by the respondent. In compliance of that order, the appellant filed affidavits and some documents on 4.3.1999 and respondent also produced affidavits and documents in support of pleas taken by her in the rejoinder. Witnesses whose affidavits were filed as additional evidence during the appeal as referred above were cross-examined by the respective opposite party. The learned trial Court after hearing both the parties and considering the evidence produced by the parties during trial as well as during the pendency of appeal by upholding and affirming the judgment and decree passed by the trial Court, dismissed the appeal filed by the appellant. Still dissatisfied, the tenant-appellant is before this Court by way of this civil second appeal. During the pendency of this appeal original tenant-appellant Shri Abdulla died and in his place his legal representatives were brought on record as appellants.

(3.) After hearing the counsel for both the parties, the appeal was admitted vide order dated 20.7.2000 on the following substantial questions of law: