NISHAR MOHAMMED Vs. ABDUL RASHID

JUDGEMENT

(1.) THE defendant-tenant has preferred this second appeal against the judgment and decree dated 22. 7. 2002 whereby the learned Additional District Judge No. 1, Jaipur City, Jaipur affirmed the judgment and decree of eviction dated 5. 3. 2001 passed by the learned Civil Judge (Junior Division), Jaipur City (West ).

(2.) BRIEFLY narrated the facts are that the plaintiff-respondent filed a civil suit for eviction and permanent injunction in March, 1991 with the averments that the plaintiff's father Abdul Karim let out the suit shop to the defendant on 1. 1. 1975 on monthly rent of Rs. 60/ -. On account of some repairs, the rent was enhanced to Rs. 75/- per month. Eviction was sought on grounds of default in payment of rent, closure of the shop for more than six months, reasonable and bonafide requirement. It was prayed that the defendant may be restrained from parting with possession of the suit shop.

(3.) LEARNED counsel for the appellant contended that the findings of the courts below on the issue of reasonable and bonafide requirement and comparative hardship are perverse. The application under Order 41 Rule 27 CPC was filed along with certain documents in the first appellate court on 2. 2. 2002. Arguments on this application were heard and thereafter, it was observed that this application shall be considered at the time of hearing of the appeal itself but the first appellate court did not consider this application while deciding the first appeal and therefore, this involves a substantial question of law. It was next submitted that during the pendency of the proceedings, the plaintiff-landlord let out a big showroom on higher rent after getting a sum of Rs. 5,56,000/- as `pagri' and that the plaintiff got vacant possession of one more shop from other tenant but the courts below did not take into consideration these relevant facts and thus, the findings are erroneous and that the documents filed with the application under Order 41 Rule 27 CPC were relevant to falsify the case of the plaintiff that due to construction of stairs in the shop which was got vacated from Verma Watch Co. the plaintiff is unable to do his business in that shop as there were already stairs from the Chowk of the house of the plaintiff to go over the roof and thus, the concurrent findings of the courts below are perverse and substantial question of law arises in this second appeal. He has placed reliance on Mohan Das vs. Bachan Lal (1), wherein it was held by this court that the appellate court should decide the application for additional evidence in appeal along with the appeal itself. Similar view was taken by this Court in Smt. Jamna and Others vs. Bhuwana The Apex Court in Wadi vs. Amilal and Others (3), held that vigilance or negligence of the party is not relevant and the additional evidence in appeal should be allowed if the document in question throws light on germane issue. In Gurdev Singh and Others vs. Mehnga Ram and Another (4), it was held that the appellate court has jurisdiction to pass order under Order 41 Rule 27 (b) CPC one way or the other and that can be challenged in second appeal against the appellate decree but such an order should not be interferred in revisional jurisdiction at interim stage.