L R OF MISHRIMAL Vs. SUKH LAL

JUDGEMENT

(1.) THE defendant has filed second appeal in a suit for eviction filed on the ground of reasonable and bonafide necessity, default in payment of rent and subletting/parting with possession of part of the rented premises.

(2.) THE learned trial Court found the question of default in favour of the plaintiff and giving benefit of Section 13 (6) of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII 1950), hereafter to be referred to as `the Act', the suit was not decreed on that count. Regarding the other two grounds, being reasonable and bonafide necessity, being covered by issues No. 5, and 11, and subletting/parting with possession being covered by issue No. 4, were decided against the plaintiff, and thus, the suit was dismissed vide judgment and decree dated 6. 3. 79. In appeal, learned District Judge, vide impugned judgment reversed the finding of the learned trial Court on issue No. 4, and held, that the defendant has allowed Tulsi Das to sit on the Chabutari, where Tulsi Das sells his merchandise by keeping a Peti. Thus, it is established that the defendant has sublet the disputed Chabutari to Tulsi Das, and has parted with possession. It was also found, that the mere fact that Tulsi Das has subsequently been removed, hardly makes any difference. Regarding bonafide necessity, the learned Lower Appellate Court found it to be not established; and regarding comparative hardship, it was found to be more in favour of the tenant. Thus, the finding of the learned trial Court on issues No. 5 and 11 were maintained. Consequently, in view of the finding on issue No. 4, the suit of the plaintiff for eviction was decreed.

(3.) WITH this preface, I was carried through the pleadings of the parties, and the evidence led on the side of either parties, and therefrom, it was sought to be contended, that even from the entire material on record, all that can be said to be made out is, that Tulsi Das was simply allowed to sit on a part of Chabutari, and was allowed to keep his box, but then, since admittedly the shop was rented out to the appellant, and Tulsi Das had no right to include anybody else, or exclude anybody- else, nor was he paying any rent, nor was he in possession, as such it cannot be said, that the rented premises have been sublet. The other limb of argument is, that according to the plaint, the shop was pleaded to have been sublet, while in the evidence, all that has been said is, that Tulsi Das was allowed to sit on Chabutari, while from a reading of relevant para 5 of the plaint itself, it is clear, that the plaintiff is conscious about the distinction between the shop and Chabutari, inasmuch as, the shop along with Chabutari has been alleged to be let out, i. e. to be the rented premises, and in that background, the allegation is, of having sub-let the shop, (and not Chabutari), therefore, the decree on the ground of subletting could not be passed. Alternatively it was submitted, that Tulsi Das was allowed to sit on Chabutari only for two days, in view of the circumstances shown by the defendant, being, that the shop of Daulat Ram was undergoing Deepawali cleaning, and in that process he was simply allowed to sit, in view of the fact, that Daulat Ram and appellant are close relatives. It was also submitted that this version of the appellant has been illegally discarded by the learned courts below, for want of pleading, while the case of the plaintiff, about allowing Tulsi Das to sit on Chabutari, has been accepted, even without any pleading in that regard being there. Various other detailed submissions were made, which I will deal later, and it was submitted, that decree is liable to be set aside.