HARI RAM Vs. HITESH CHANDRA

JUDGEMENT

(1.) THIS is defendant's second appeal against the judgment and decree dt. 27.2.1989 passed by learned District Judge, Udaipur whereby he has reversed the judgment and decree dt. 17.12.86 passed by learned Munsif and Judicial Magistrate, 1st Class Udaipur (North) in civil original case No. 112/81.

(2.) BRIEF facts of the case are that the plaintiff respondent had filed a suit on 11.8.78 for eviction of the shop with the allegation that the suit shop situated in Juni Ret Ka Chowk, Udaipur (described in para 1 of the plaint) was let out to the defendant -appellant on 1.7.1973 at the rate of Rs. 100/ - per month. It was alleged that he was carrying on his business in partnership but he wanted to start his own business in general merchandise and detergent washing powder in this shop. It was urged that he has another shop, which is on rent but the same is not appropriate for business as it is situated in street. It was further alleged that he has no other alternative suitable accommodation and thus his need for the shop is reasonable and bonafide. The plaintiff also claimed that the defendant has sublet the suit shop to one Hasanand. He has also claimed rent of 16 months. It was alleged that the defendant has alternative plot and has other suitable shop. The plaintiff has also alleged that on the ground of his personal necessity a notice also served for terminating the tenancy on 21.7.78 on the. defendant but neither he vacated the shop nor paid the rent rather a wrong reply was given by the defendant. The defendant resisted the suit. The defendant has stated that the shop was let out in 1957 @ Rs. 10/ - thereafter the rent was increased from time to time. In the year 1968, the rent was increased to Rs. 55/ -per month and then Rs. 100/ - Per month. A new rent note was executed in the year 1973. Therefore, the suit is filed with oblique motive to increase the rent. It has also been stated that in earlier notice dt. 21.7.77, he claimed that the suit shop is required for his brother Jagdish Chandra but later on he changed the necessity for himself. It has also been stated that the defendant is already carrying on his business with his uncle. It was alleged that during the trial, plaintiff got one shop vacated from Sadhuram but the same was given to his own brother Dinesh Chandra in December, 1977. It was also stated that one shop of the plaintiff was with one Manmohan Kumavat, watch mechanic on rent @ Rs. 50/ - which was later on increased. It was further alleged that Manmohan sat his relative Rakilal on the shop who joined hands with the plaintiff and the plaintiff gave the same shop to him on rent @ Rs. 150/ - per month, in this regard on the basis of FIR filed by Manmohan, criminal cases are pending against the plaintiff and Rakilal. He has denied the claim of the plaint that rent is due and on refusal the rent was deposited in court Under Section 1 9A of the Rajasthan Premises [Control of Rent and Eviction) Act, 1 950. It was also alleged that Hasanand is working from the beginning with the defendant. The defendant has urged that he has nothing to do with the shop of Shyamlal, which is closed for 15 years. On the pleadings of the parties, the learned trial court framed as many as six issues on 22.8.80. Necessary amendments in written statements were made on 30.8.82 and on 25.11.82. An additional issue No. 5A was framed on 20.9.82. The plaintiff has examined PW 1 Hitesh Chand, PW 2 Ratanlal, PW 3 Purshotamlal, PW 4 Bhanwarlal and the defendant has examined himself as DW 1, DW 2 Sadhuram, DW 3 Ramesh Chandra, DW 4 Lekhraj and DW 8 Shyamlal. Both the parties produced documents. The plaintiff moved an application under Order 13 Rule 2 CPC on 5.3.1981 for producing partnership deed [Ex.3) as their partnership deed was disolved w.e.f. 31.3.1986. Objections were made that the document (Ex.3) is same one. But the learned trial court allowed it on the cost of Rs. 50/ - vide order dt. 4.1.1984. During the pendency, after closing the evidence, an application under Order 18 Rule 11A CPC was filed. This application was resisted by the defendant. The same has been allowed on 18.4.1 984 on the cost of Rs. 100/ -. The petitioner has re -examined himself and also examined one Shri Bhanwar Singh, so the defendant moved an application on 20.3.85, for permission to lead evidence on rebuttal but the same was dismissed by learned Munsif and Judicial Magistrate vide order dt 1.4.85. The defendant again moved an application under Order 6 Rule 1 7 CPC on 3.8.85, for amendment in para 6 of the written statement to add a plea of standard rent but the same was dismissed on 6.9.85 on the cost of Rs. 25/ -. The learned trial court after considering material on record dismissed the suit on 17.4.1986. On appeal, the learned Appellate Court allowed the appeal on the ground of reasonable and bonafide necessity and six months time was granted to vacate the premises on 27.2.89. Hence, this second appeal.

(3.) MR . R.C. Maheshwari, learned Counsel for the plaintiff - respondent has submitted that it is absolutely wrong to say that the learned Appellate Court has not considered all the points in detail which were considered by the learned trial court. He has submitted that the learned Appellate Court has fully considered the material which was considered by the learned trial court and thereafter found reasonable and bonafide necessity as well as comparative hardship in favour of the plaintiff. He has also submitted that the court has rightly dismissed the application as they were not filed at appropriate time and filed after belated stage. Mr. Maheshwari has submitted that point of partial eviction was not argued nor it was possible in this case. Mr. Maheshwari, learned Counsel for the respondent has submitted that the conduct of the appellant is not of such a nature to grant him any relief. He has submitted that vide impugned judgment dt. 27.2.89, the appellant was granted six months time to vacate the premises. He filed appeal on 17.5.89 but kept pending in defect whereas the respondent filed first caveat on 7.3.89 and second caveat on 7.8.89. The case was listed in the court on 22.8.89 and it was ordered to be listed on 25.8.89 for final disposal. He has submitted that on this conduct also he is not entitled for any indulgence rather his entire conduct is abuse of the process of the court.