HARI PRASAD Vs. MADAN LAL

JUDGEMENT

(1.) THIS civil second appeal has been filed by defendant Hari Prasad under Section 100 of the Code, Civil Procedure, 1908 (here-in-after referred to in short `the CPC') against the judgment and decree dated 13. 3. 1989 passed by the learned Addl. District Judge No. 2, Kota in Civil Appeal No. 87/1981 whereby the appeal has been dismissed and the judgment and decree dated 9. 11. 1981 passed by the learned Munsiff (North) Kota in Civil Original Suit No. 393/1974 has been upheld.

(2.) BRIEFLY stated, the relevant facts leading to the filing of this appeal and necessary for its disposal are that Quarter No. 13 situated in Old Chhapakhana Building, Rangpur Road, Bhimganj Mandi, Kota belonged to Shri Brahmdutt Joshi and Smt. Kamla Joshi from whom the same was purchased by Gopi Chand vide registered sale-deed dated 23. 6. 1972. These premises had been let-out by them to the defendant-appellant about 15 years ago. Gopi Chand filed a suit for eviction and arrears of rent on the ground of reasonable and bonafide personal necessity, substantial damage to the suit premises and suitable alternative residential accommodation being available for him and default in the payment of rent for six months. After filing the suit, he further sold the suit premises to Madan Lal through registered sale-deed dated 26. 12. 1974 who moved an application on 14. 2. 1975 under Order 6 Rule 17 CPC and under Order 1 Rule 10 CPC for permission to be substituted in place of the original plaintiff Gopi Chand and for amendment of the pleadings. Gopi Chand also moved an application on 27. 2. 1975 before the trial Court stating that he had no objection to the acceptance of the application moved by Madan Lal, the transferee of the suit premises. The applications were ultimately allowed. Madan Lal, the transferee was substituted in place of Gopi Chand and he was also permitted to file amended plaint. Madan Lal, the transferee filed amended plaint on 15. 12. 1975 on the self-same grounds as were taken by Gopi Chand in is plaint. The defendant denied all the averments made in the plaint and contested the suit. The trial court framed as many as nine issues on the basis of the pleadings of the parties. The parties were afforded an opportunity of leading their respective evidence. They examined three witnesses each besides producing other documentary evidence. The trial Court after hearing both the sides decided issue Nos. 1, 3 and 4 in favour of the plaintiff and issue No. 6 and 7 against him. It was further held that issue No. 2 had been rendered unnecessary and was decided accordingly and issue No. 5 was not pressed by the learned counsel for the plaintiff. Issue No. 8 was also likewise held to be rendered un-necessary in view of the pronouncement of the Hon'ble Apex Court in V. Dhanapal Chettiar vs. Yashodai Ammal (AIR 1979 SC 1745 ). As issue Nos. 3 and 4 which pertain to reasonable and personal bonafide necessity and comparative hard- ship were decided in favour of the plaintiff and against the defendant. The suit for eviction was decreed by the trial Court on 9. 11. 1981. The appeal preferred against the said judgments and decree was dismissed by the first appellate Court vide its judgment dated 13. 3. 1989. Hence, this second appeal which was admitted on 19. 5. 1989 on the following substantial questions of law. " 1. Whether in the present facts and circumstances the application under Order 1 Rule 10 and Order 6 Rule17 CPC filed by Madanlal was maintainable and same were rightly allowed by trial court? 2. Whether a decree for eviction on the ground of reasonable and bonafide necessity can be passed in favour of plaintiff-respondent even though he runs a shop and resides at Rawatbhata and in Kota the only son of plaintiff-respondent has separate accommodation for needs of his family? 3. Whether the finding with regard to comparative hardship is vitiated on the ground that two courts below have not taken note of finding recorded by trial court on issue No. 7?

(3.) IT is an undisputed fact that the demised premises were purchased by the present plaintiff-respondent before the issues were settled. The issue framed in the suit was with regard to the reasonable and bonafide personal necessity of plaintiff Madan Lal. IT is not a case where the decree of eviction has been passed on the ground of reasonable and bonafide personal necessity of the predecessor-in-title. In the cases referred to and relied upon by the learned counsel for the appellant- defendant, the decrees were passed in favour of the plaintiffs on the basis of their reasonable and bonafide personal necessity. As such, the decrees in those cases had been rendered inexecutable in view of the relevant provisions whereas in the instant case the decree passed in the suit has not become inexecutable in view of the provisions of Section 13 (1) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950.