PADMAWATI AND ANR. (SMT.) Vs. SATISH KUMAR GUPTA

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and order of the learned Single Judge dt. 20.11.2006 passed in S.B. Civil First Appeal No. 391/2006 by which the learned Single Judge, while admitting the first appeal, refused to grant interim order of stay in favour of the appellants Smt. Padmawati and Rajendra Kumar after taking into consideration the finding recorded by the trial Court that the defendants appellants Smt. Padmawati and Rajendra Kumar are not using the suit premise for conducting any business. It has also been recorded by the trial Court that the appellant Smt. Padmawati is aged about 68 years and the tenant, who was inducted into the suit premise, was her husband who had expired. After his death, his four sons are having separate business and are well settled and, therefore, the suit for eviction was decreed in favour of the respondent -landlord on the ground of bona fide personal necessity. The specific case of the landlord -respondent was that he was in need of the shop for his personal use for setting up a cloth shop as he does not have any shop of his own and he is without any source of livelihood or income. Taking into consideration the comparative hardships of the landlord -respondent and the appellants -tenants, the suit was decreed in favour of the landlord respondent against which the tenant -appellants preferred the first appeal which has been admitted for hearing. The tenant -appellants filed an application for stay of execution of the decree passed by the trial Court and the said application for stay was rejected as already stated hereinbefore.

(2.) IT was submitted by learned Counsel for the appellant that the appellant judgment debtor, whose appeal has been admitted by the learned Single Judge should have granted him protection from eviction as no purpose could be served by merely admitting the appeal if the appellant is made to vacate the suit premise.

(3.) WE find force in the contention of learned Counsel for the respondent opposing the special appeal against refusal to grant an order of stay against the judgment and decree passed in a First Appeal, in view of the statutory bar. However, in the interest of equity and justice, we preferred to examine the matter on merit also and hence we granted opportunity to the counsel for the appellants to apprise this Court as to what perversity has been crept into the order of the trial Court while recording the finding that the suit premise is not being used by the appellant -tenant -Smt. Padmawati which does not justify grant of an order of stay of execution of the decree of eviction. The counsel has not been able to demonstrate as to how the appellant -tenant Smt. Padmawati is using the suit premise after the death of her husband tendering weight to the finding that the suit premise is not being used by her. The name of the firm although is M/s. Allied Agency, it does not indicate the nature of business conducted by her and is a firm existing on paper only. The counsel for the respondent -landlord also stated that even as per the evidence led before the trial Court, the firm M/s. Allied Agency is merely a fake firm and no actual business is being conducted by the appellant in the suit premise. In the wake of these submissions, we do not consider it appropriate to grant any protection to the appellant against the decree of eviction. We, thus, find no substance in this appeal and hence it stands dismissed at the admission stage itself.