MANSUKHLAL Vs. PRABHU LAL

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment of the learned District Judge, Banswara dated April 3, 1979 by which he allowed the appeal and set aside the judgment of the Civil Judge, Banswara dated April 18, 1978, decreeing the suit for the recovery of Rs. 700/- as arrears of rent and ejectment. The facts of the case giving rise to this appeal may be summarised thus.

(2.) ON 18.8.75, the plaintiff-appellant filed a suit for rent and ejectment against the defendant-respondent with the allegations, in short, that he let out suit shop to him on monthly rent of Rs. 100/- on 1.12.1973, rent has not been paid from November 1974 to May 1975, he is carrying on his business in a rented shop situated in Bhavsarwara, Banswara, his landlord is pressing hard to vacate it, he is residing with his family consisting of 11 members in a room situated behind the suit shop with great difficulty and, therefore, the suit shop is reasonably and bonafide required by him for his business and residence. By amendment, he further averred that the suit shop is also required for business of his son and he would suffer greater hardship if the ejectment decree is not granted in his favour. The defendant resisted the suit and stated that rent was regularly tendered to the plaintiff, the suit shop is not required by him, the plaintiff has two other shops at his disposal for his business, he has sufficient accommodation for his residence and the suit shop is not suitable for his business. After framing necessary issues and recording the evidence of the parties, the learned trial Court held that the defendant has committed default in payment of rent from November, 1974 to May, 1975 and the suit shop is required for his business and residence and accordingly decreed the suit by its judgment dated 19.4.78. On appeal, the learned District Judge held that the defendant has not committed any default in payment of rent, the suit shop is not reasonably and bonafide required by the plaintiff as he has not even disclosed the nature of business which he wanted to start in this shop and accordingly allowed the appeal.

(3.) BEFORE the commencement of arguments, the learned counsel for the plaintiff-appellant moved an application under Section 100(5) C.P.C., permitting him to argue on the substantial question of law relating to the reasonable and bonafide necessity. Its copy was duly given to t he learned counsel for the respondent. No reply was filed by him but he seriously opposed it.