SURJEET SINGH Vs. SATYANARAIN

JUDGEMENT

(1.) THIS second appeal has been filed by the respon dent-tenant against the judgment & decree of the learned Additional District Judge No. 2, Jodhpur dated November 26, 1988 by which he has dismissed his appeal and confirmed the judgment of the Additional Munsif No. 1, Jodhpur dated Feb. 16,1985, decreeing the suit for the recovery of mesne profits and ejectment against him in respect of the shop No. 6 situated at Pal Road, Jodhpur.

(2.) SHRI H. C. Jain and SHRI S. C. Maloo, Advocates filed caveat on behalf of the plaintiff-respondent. On the joint request of the learned counsel for the parties, it was ordered on February 2, 1989 that the case would be finally heard & decided at the admission stage. After the receipt of the record the case was listed on 11. 4. 89. The order-sheet of this date runs as under: - <DJG> "11. 4. 89 Hon'ble Mr. Milap Chandra, J.</DJG> Mr. A. L. Chopra for the appellant. Mr. H. C. Jain Mr. S. C. Maloo for the respondent. It is admitted case of the parties that presently the respondent Satya narain is carrying on the business under the name and style of Kohinoor Colour Lab. The case of the appellant is that this business is being done by the respondent in the adjoining shop No. 7. On the contrary, the case of the respondent is that he is not carrying on the said business on the shop No. 7 but he is carrying it in a room inside the house which has no direct door opening on the road. The learned counsel for both the parties request that a Commissioner may be appointed for verifying these facts and the appeal be decided against the party whose version is not found true. They further request that SHRI K. C. Jain, Additional Registrar (Judl.) may be appointed as a Commissioner for this purpose. SHRI K. C. Jain. Additional Registrar (Judicial) is appointed as a Commissioner to inspect the said shop No. 7 and room today and to verify the said facts. He will mention in his inspection report about the articles and documents found in the shop & the room. He will further note whether the documents found therein relate to the respondent or some other person. A copy of this order be immediately given to the Additional Registrar Sri K. C. Jain. Report will be filed by 13. 4 89. Sd/- Milap Chandra Jain. " In compliant with the above quoted order, the Additional Registrar (Judicial) submitted his report on 13. 4. 89.

(3.) THE defendant-appellant Surjeet Singh states in his affidavit dated 25. 11. 88, paper No. 28-29, of the file of the miscellaneous case No. IB/85 of the Court of Additional District Judge No. 2, Jodhpur that the Studio Image is of the plaintiff and it has been opened to save tax, machines purchased by the plaintiff with the help of the bank loans are fitted in the shop No. 7, he himself got his photos snapped in this shop and the developing and printing work is also done by plantiff in this very shop. THE defendant-appellant is occupying the adjacent shop Nol 6. He could easily get photos showing plaintiff Satyanarain doing & carrying on business in the shop No 7. No such photo has been filed by the defendant-appellant. He could also send any of his man for getting a bill or cash memo in the handwriting of the plaintiff while he was sitting and carrying on business there. No bill or cash memo of Studio Image in the handwriting of the plaintiff has been filed. It was not difficult to procure them if the plaintiff in fact was running the business of Studio Image.