SURYA PRAKASH Vs. MAGANAWATI

JUDGEMENT

(1.) THIS appeal is against the judgment and decree passed by the first appellate court dated 5. 4. 1989 as the first appellate Court after reversing the judgment and decree of the trial Court dated 28. 2. 1975, decreed the suit for eviction of the defendant-tenant from the premises in dispute.

(2.) BRIEF facts of the case are that plaintiff Smt. Manganawati filed a suit for eviction on 1. 2. 1973 against his tenant- defendant Surya Prakash on the allegation that the suit premises was let out to the said defendant-tenant Surya Prakash on rent that the suit premises was let out to the said defendant-tenant Surya Prakash on rent of Rs. 32/- per month. The suit premises is required for the personal bona fide need of the plaintiff herself and for the necessity of her family members. According to the plaintiff, at the time she had four sons, out of which two were married. One of the son of the plaintiff had two sons. Three daughters of the plaintiff were residing with the plaintiff at the time. The plaintiff herself was living in a rented house at the time of filing of the suit. The plaintiff also pleaded that she had 13 members in her family and she wanted to live in her own house. it will be worthwhile to mention here that ground- floor of the house was let out to one Mitha Lal but during the pendency of the first appeal, said Mitha Lal vacated the ground- floor of the house and the plaintiff got possession of the house of ground-floor on 21. 4. 1988. This fact was taken on record on application of the defendant filed under Order 41 Rule 27 CPC. After taking on record this fact also, the first appellate court held that the plaintiff's need is bona fide and she is entitled for decree for possession of the house in dispute. It appears that during the pendency of the first appeal, the original defendant Surya Prakash expired and his legal representatives were taken on record. In this appeal one of the grounds for challenge to the judgment and decree of the first appellate Court is that one of the legal representatives of deceased Surya Prakash-tenant, namely, Smt. Sushila Devi was not served with the notice of the appeal, therefore, a substantial question of law was framed by this Court on 4. 7. 1989 to the effect that whether the defendant-respondent Sushila Devi was served with the notice of the first appeal? If not so, to what effect? The another ground of challenge is that whether the first appeal? If not so, to what effect? The another ground of challenge is that whether the first appellate court ignored material and important evidence and also misread the evidence while recording the finding on reasonable and bona fide necessity and comparative hardship and, therefore, this was framed as substantial question of law No. 2. Substantial question of law No. 3 is to the effect that whether the decree for ejectment passed by the first appellate court is sustainable despite the fact that it did not consider and decide the question of partial eviction as required under the proviso of sub-section 2 of Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.

(3.) THE learned counsel for the appellants at this stage prayed that the appellant may be given reasonable time to vacate the house in dispute because the appellants who are residing in the house since long and having a large family, will have to make suitable arrangements for their residence. THE learned counsel for the appellants for vacating the house because the need of the plaintiff-respondents is grave.