BABULAL AND ANR. Vs. PREM PRAKASH

JUDGEMENT

(1.) THIS second appeal under Section 100 CPC has been filed against the judgment and decree dated 27.11.2012, passed by the learned Additional District & Sessions Judge No. 2, Alwar in civil regular first appeal No. 69/2011 upholding the judgment and decree dated 17.06.2011, passed by the learned Additional Civil Judge (Junior Division) No. 1, Alwar in civil suit No. 34/300/1995, whereby the suit filed by the plaintiff -respondent (hereinafter 'the plaintiff) for eviction of the defendant -appellant (hereinafter 'the defendant') was decreed. The facts of the case are that the plaintiff filed a suit for due rent and eviction against the defendant on 22.07.1995 in the court of learned Civil Judge (Jr. Div.) No. 1, Alwar seeking eviction of the defendant as tenant in a shop owned by the plaintiff on the ground of bona fide need of his son Bihari Lal as also on the ground of default in payment of rent and sub -letting and parting with possession. The plaintiff stated that the rent current at the time of filing of the suit was Rs. 150 p.m. and had not been paid since 01.07.1993. The defendant had handed over exclusive possession of the tenanted shop to his son and ceased doing business on his part therefrom. It was stated that plaintiff owned seven shops including the tenanted shop in issue, but five shops had been let out and were in the occupation and possession of other tenants. The plaintiff stated that he had four sons and following one shop earlier in the tenancy of Gopal Dhobi having came to be vacated on a compromise/consent decree, the said shop was being utilized by one of his other son Subhash for doing business in the sale and purchase of books. It was submitted that another son of the plaintiff, Bihari Lal was unemployed and the plaintiff required the tenanted shop in issue for Bihari Lal's need to set up shop also for the sale and purchase of books and stationery. It was further stated that the defendant had this own shop at Kati Ghati, Alwar and had started business therein relating to repair/sale of cycles.

(2.) ON service of notice, a written statement of denial was filed by the defendant. It was stated that the payment of rent had been made upto July, 1995 and that the plaintiff had eight (not seven) shops, out of which five shops were on rent, two were with the plaintiff's sons including Bihari Lal whose putative need was at the foundation of the suit for eviction. It was submitted that Bihari Lal was already in business from another shop carved out of the gallery of the plaintiff's residential house. Bihari Lal was stated also to be engaged in the business of publication of newspaper/magazines in various capacity including that of editor and therefore could not claim to be unemployed to warrant the bona fide and personal necessity for the tenanted shop in issue for his need. It was stated that in the event the suit for eviction were to be decreed and the defendant evicted, it would cause great hardship to the defendant vis a vis the plaintiff and on this ground also the suit for eviction was deserving of dismissal. It was finally stated that in fact Bihari Lal was not even a joint family member of the plaintiff, was leaving separately and his need if at all made out could not said to be bona fide and reasonable necessity of the landlord under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter 'the Act of 1950').

(3.) THE plaintiff in support of his case produced six witness as PW -1 to PW -6 including himself (PW -1) and Bihari Lal (PW -2) for whom the bona fide and reasonable necessity was pleaded in respect of the tenanted shop in issue. In defence, seven witnesses were produced before the trial court. The plaintiff produced 9 Exhibits from Ex -1 to Ex -9 as the defendant produced 30 exhibits from Ex -A/1 to Ex -A/30.