RAKESH GUPTA Vs. AHMED FAROOQ

JUDGEMENT

(1.) THIS revision petition has been filed against the order dated 17. 11. 1992 passed in civil appeal No. 5/91 by the learned Additional District Judge no. 2, Jodhpur.

(2.) THE brief facts leading to this revision are that the non-petitioners -plaintiff filed a suit for eviction against the present petitioner from the suit shop situated at Jodhpur, on the ground that the shop is requirtd reasonably and bonafidely for the plaintiff's use. THE plaintiffs' suit was decreed on 30. 11. 84. THE defendant preferred an appeal before the Addl. District Judge No. 2, Jodhpur.

(3.) IN the present case, the decree for ejectment has been passed or the ground that the plaintiff landlord required the suit premises reasonably and bonafide for his own use. The ground for eviction is not only required to be in existence at the time of filing of the suit but also must continue to exist until decree is executed or tenant is actually evicted. A decree passed on such ground cannot be executed to eject a tenant, if the tenant is able to show even at the time of execution, that such requirement has ceased to exist since the passing of the decree. The facts, that after passing of the decree the landlord had acquired vacant possession of premises of the like nature as the suit premises are in the same vicinity and that landlord has not put it to use for the requirement which he pleaded for evicting the tenant, are certainly relevant factors to be considered even at the time of execution of decree. If that is the intendent ambit of Sec. 13 of the Rajasthan Premises (Control of Land and Eviction. Act, 1950, which is a non-obstant clause, it cannot be said, that the plea sought to be raised by the defendant-appellant before the first appellate court were not relevant or germane to the decision of appeal. The enquiry into such facts could not be avoided, merely on the basis of a tentative or prima facie opinion formed on the basis of affidavits or counter allegations in the application and reply.