BHAGWATI BROTHERS Vs. LALLOOLAL & ANR.

JUDGEMENT

(1.) THE unsuccessful defendant/ tenant, against whom the two Courts below have passed the decree of eviction from the suit premises, has assailed the judgment and decree of the two Courts below by filing this second appeal. Sarman Bai and Lalloolal filed suit against present appellant for ejectment, vacant possession and arrears of rent. Plaintiff No. 1 Sarman Bai after her evidence was recorded died on 2.4.1996. Plaintiff No. 2 Lallolal who is the husband of Sarman Bai, was already on record, however, Smt. Usha Devi daughter of Sarman Bai and Lallolal, as legal representative of Sarman Bai, was later on substituted.

(2.) SARMAN Bai was the landlady of the defendant. The defendant took the suit premises on monthly rent at the rate of Rs. 175/ - per month. According to the plaint averments the suit premise which is a shop is required by plaintiff No. 1 Sarman Bai in order to carry on the business of restaurant in which her husband plaintiff No. 2 and servants will help her. The residential portion of plaintiffs is also adjoining to the suit shop and therefore it will be better to manage the business by the landlady. Plaintiff Sarman Bai has no other reasonably suitable non -residential accommodation of her own in the township and her need is bonafide. The suit shop is most suitable to carry on the business because it is facing the main road. The defendant/ appellant refuted the averments made in the plaint and pleaded that the plaintiffs are not is bonafide need of the suit shop. It has been further pleaded that plaintiffs have other suitable non -residential accommodation where they could start the business. By way of amendment, the defendant added new para 10 -A in the written statement and pleaded that the plaintiffs have purchased 600 Sq. ft open land in Hanumanganj and in which they could construct a market on the said land and may start the business. In fact, according to the defendant the market has been established by the plaintiffs. Certain other alternative non - residential accommodation have also been pleaded by defendant in the written statement.

(3.) THE trial court framed necessary issues and after recording the evidence of the parties decreed the suit. The defendant thereafter preferred first appeal before the learned First Appellate Court which has also been dismissed by the impugned judgment and decree. Hence, this second appeal is filed at the instance of defendant. This Court on 15.1.2003 admitted the second appeal on following substantial question of law: Whether on the evidence on record, defendants have established that appellant has an alternate accommodation which was sold by him during the pendency of suit, the court below were justified in decreeing the suit on the ground of bonafide need. Since there were certain typographical error in the substantial question of law, on 25.4.2006 the substantial question of law was recasted and some more substantial questions of law were framed. They are as under: