ASHOK KUMAR Vs. GOPI RAM

JUDGEMENT

(1.) Heard learned counsel for the parties. The appellant is aggrieved against the eviction decree of the trial court dated 22.8.1984 which was upheld by the first appellate court vide judgment and decree dated 11.5.1988.

(2.) Brief facts of the case are that the plaintiff/respondent filed a suit for eviction against the defendant/appellant on the ground that the appellant is tenant in one of the shops of the plaintiff where the plaintiff wants to settle his two sons who are pursuing their medical courses in medical college for becoming doctor. The plaintiff also alleged that the defendant materially altered the premises, therefore, the plaintiff is entitled to decree for eviction of the tenant. Issue for committing default by the tenant was also there. The trial court, however, decreed the suit of the plaintiff on the ground of personal bonafide necessity after considering the plea of the defendant about completion of studies by plaintiff's sons and their joining services at different places. The trial court also held that the defendant materially altered the suit premises and, therefore, on this ground alone, the plaintiff is entitled for decree of eviction. The appellate court upheld the finding of the trial court. Hence, this second appeal. The appeal was admitted by the order of this court dated 12.7.1988 but without framing any substantial question of law. While admitting, this Court observed that the appellant has moved three applications viz., one under Order 6 Rule 17 CPC, another under Order 41 Rule 27 CPC and the third one for permission to urge additional grounds in appeal.

(3.) Second appeal can be admitted only if substantial question of law is involved and since the appeal has been admitted without framing substantial question of law, therefore, to find out whether any substantial question of law is involved in the appeal, the appeal is heard. According to learned counsel for the appellant, the plaintiff filed the suit for eviction of appellant on the ground of personal bonafide necessity and with allegation of material alteration. According to learned counsel for the appellant, even if all the allegations levelled by the plaintiff against the appellant of making changes in the suit premises are accepted to be true, even then, that does not constitute material alteration in the suit premises. The only allegation against the defendant is that he has constructed one Duchati (mezzanine floor) by putting an iron gurder within the shop in dispute and in view of various judgments of the Hon'ble Apex Court followed by this Court, temporary construction of Duchati cannot amount to material alteration in the suit premises.