LAL CHAND DOSAYA Vs. BABU LAL

JUDGEMENT

(1.) THE instant second appeal arises out of the judgment & decree dated 06.04.2013 passed by the Additional District & Sessions Judge No. 5, Ajmer (hereinafter referred to as "the appellate court") in Civil Appeal No. 129/2012, whereby the appellate court has confirmed the judgment & decree dated 25.09.2002 passed by Civil Judge (Junior Division) & Judicial Magistrate (South) Ajmer (hereinafter referred to as "the trial court") in Civil Suit No. 245/89, decreeing the suit of the respondents -plaintiffs for eviction in respect of the suit shop.

(2.) THE facts in nut shell are that the original plaintiff Shri Babulal, (since deceased, now represented by the respondent Nos. 1/1 to 1/10), Shri Jagdish Prakash, Shri Shiv Shankar, Shri Anil Kumar, Shri Jawahar Lal, and Shri Santosh Kumar had filed the suit on 18.08.1989 seeking eviction of the original defendant Shri Lal Chand Dosaya, (since deceased, now represented by appellant Nos. 1/1 & 1/2) from the suit shop, which was let out to Shri Lal Chand at the monthly rent of Rs. 70/ -. It was alleged in the plaint inter alia that the defendant -Lal Chand had paid rent upto 30.11.88 and then had committed default in making payment of rent for more than 6 months; that the defendant had also raised construction of permanent nature in the suit shop, and thereby had also caused damage to the suit shop. It was alleged that the said suit shop was bonafidely required for the family members of the plaintiffs and more particularly for Shri Shiv Shankar for starting his own business. The original plaintiffs had also alleged that the defendant Babulal already had one property i.e. big Nohra, where he could do his business, and also another shop situated opposite to the suit shop, which he had given on rent, and thus the defendant had the alternative shop available for his own business. In the short, the plaintiffs had filed the suit on various grounds seeking eviction of the defendant. The said suit was resisted by the original defendant Lal Chand by filing the written statement, denying the allegations of non payment of rent as alleged. It was also denied that he had carried out any permanent construction or caused any damage to the property. It was further contended that Shri Shiv Shankar was carrying on his business with his father Babulal, and he or any of his family member did not require the suit premises bonafide. The defendant had also contended that the plaintiffs had other 7 shops out of which 1 shop was vacant and Shri Shiv Shankar could have carried on his business in the said shop. The original defendant, therefore, had urged to dismiss the suit.

(3.) THE trial court after appreciating the evidence on record, laid by both the parties, had decreed the suit by deciding issue Nos. 1 & 4 in favour of the defendant Lal chand, and issue Nos. 2, 3, 6 and 7 against the defendant. The issue No. 5 was not pressed for by the defendant. The trial court decreed the suit also by holding that partial eviction in respect of the suit shop was not possible. Being aggrieved by the said judgment & decree passed by the trial court, the original defendant Lal Chand had preferred the appeal before the appellate court. During the pendency of the appeal, the original defendant Lal Chand, and the original plaintiffs Babulal, Jagdish Prakash and Shiv Shankar expired, and therefore their respective legal representatives were brought on record. In the appeal before the first appellate court, the present appellants, who were the legal representatives of the original defendant Lal Chand had made an application under Order VI Rule 17 read with Section 151 of CPC on 08.03.2006, contending inter alia that Shri Shiv Shankar had let out one shop to one Ramesh Kumar about 1 or 2 months back, and the respondents were also having other shops in the same building where the disputed shop was situated, and therefore Shri Shiv Shankar did not require the suit shop. The said application was replied by the respondents stating inter alia that there was no vacant shop available with them as alleged, and that the disputed shop was situated in the main market which was suitable for the business of the respondents. It further appears that subsequently the said Shiv Shankar also having expired on 12.05.2010 during the pendency of the appeal, the appellants moved another application alleging that after the death of Shiv Shankar, his necessity had also come to an end. The said application was also resisted by the wife of the deceased Shiv Shanker by filing the reply stating inter alia that Shri Shiv Shankar had executed a will on 30.04.2010 in favour of his nephew Jitendra Gupta and that the suit shop was required for Jitendra Gupta for his business.