SUKH LAL Vs. NARAYAN DAS

JUDGEMENT

(1.) This second appeal has been filed against the judgment of the learned Additional District Judge, Nagaur dated 25/09/1993 by which she has dismissed the appeal of the defendant-appellant filed against the' judgment of the learned Munsif, Nagaur dated 7/12/1981, decreeing the suit for recovery of arrears of rent and mesne profits and ejectment of the defendant appellant from the suit shop situated in the town of Nagaur.

(2.) The facts of the case giving rise to this second appeal may be summarised thus. On 23/04/1973, the plaintiff Narayan Das filed a suit for recovery of arrears of rent and ejectment against the defendant-appellant Sukhlal and his brother Sampat Lal on the grounds of default in payment of rent of three years and reasonable and bona fide necessity of the suit shop for his brother Jai Kishan, a member of his joint family. The suit was resisted by the defendants. On 7/02/1974, issues on reasonable and bona fide necessity arid default were framed besides an usual issue of relief. Subsequently, issues on comparative hardship and partial eviction were also framed in pursuance of the orders of the Appellate Courts. On the application of the defendant-appellant amount of arrears of rent and interest was determined vide order dated Decemher 3, 1974 and the determined amount was paid. Issue of default did not survive. By his judgment dated 7/12/1981, the learned Munsif, Nagaur decreed the suit for arrears of rent and ejectment holding that the defendants have committed default in payment of rent for more than3 years, the suit shop is reasonably and bona fide required by the plaintiffs brother Jai Kishan and if the suit is not decreed he would suffer greater hardship. Appeal No. 1 of 1982 Sukhlal v. Legal Representatives of Narayan Das was filed. Shri Brijlal Bundel Additional District Judge, Nagaur allowed the appeal and remanded the case with the direction that the trial Court would frame an issue under Section14(2) of the Act regarding partial eviction, take evidence of the parties on newly framed issue and, thereafter, decide the suit. Civil Misc. Appeal No. 121/87 was filed by the legal representatives of Narayan Das and it was partly allowed. By order dated 21/05/1988, this Court framed an additional issue on partial eviction, remitted it to the trial Court with the direction to record the evidence of the parties on it and send the record to the first appellate court who would decide the appeal in accordance with law. Thereafter, the learned Munsiff, Nagaur recorded his findings on the said issue in favour of the plaintiffrespondents by his order dated 8/08/1990. In compliance with the said order dated 21/05/1988, the first appeal was heard by the learned Additional District Judge, Nagaur and it was dismissed by judgment dated 25/09/1993 holding that the issue regarding reasonable and bona fide necessity was not pressed by the learned counsel for the appellant before her and partial eviction would cause greater hardship to the plaintiffs brother Jai Kishan. Review petition No. 15/93 was moved by the defendant-appellant Sukhlal before the learned Additional District Judge, Nagaur challenging the observations made in her judgment dated 25/09/1993 that the issue regarding reasonable and bona fide necessity was not challenged before her. This review petition was dismissed by the learned Additional District Judge, Nagaur by her order dated 20/12/1993. Civil Revision No. 158 / 94 was filed against this order and it was also rejected by this Court by its order dated Feb 24/02/1994.

(3.) In the memorandum of appeal, the following substantial questions of law have been stated as required under Section 100(3), C.P.C.: