Decided on January 21,2019

RATAN LAL Appellant
Sosar Bai Respondents


P.K.LOHRA,J. - (1.) Appellant-defendants, remaining unsuccessful before this Court as well as Apex Court in their attempts to get favourable orders on their applications including under Order 41 Rule 27 CPC and being aggrieved by concurrent findings of two Courts below decreeing the suit filed by respondent-plaintiffs, have laid the present second appeal under Section 100 CPC. The Addl. District Judge No.1, Bhilwara (for short, 'appellate Court') vide impugned judgment and decree dated 08.05.2018 has dismissed their appeal against judgment and decree dated 28.04.2004, passed by Additional Civil Judge, Bhilwara (for short, 'learned trial Court').
(2.) Brief facts of the case are that original respondent-plaintiffs Smt. Sosar Bai (since deceased) filed a suit for eviction and arrears of rent against original defendant Ratanlal on the grounds of default in payment of rent and reasonable and bonafide necessity stating therein that the suit premises shop is needed for business of her two unemployed sons Rameshwar and Badrilal. The original defendant Ratan Lal contested the suit by filing a written statement refuting all the averments made in the plaint and denied the claim of plaintiffs in respect of default and reasonable and bona fide necessity. Original defendant Ratanal expired on 06.05.2000 and an application was moved on 20.07.2000 to implead his legal representatives and one Dalpat Singh also, who was carrying on business in the disputed shop at the time of death of original defendant and learned trial Court allowed impleadment of legal heirs of original defendant Ratan Lal as party defendants to the suit. One more application was filed before the learned trial Court for amendment under Order 6 Rule 17 on 17.04.2001 for adding para No.4A in the plaint to the effect that defendant acquired another shop, therefore, not in need of the suit shop. In reply to that application, original defendant inter-alia stated that his business cannot be carried out at the indicated place. Thereafter, learned trial Court added one more issue as Issue No.4A to the already framed four issues stemming from the pleadings of the parties and recorded evidence of rival parties. Learned trial Court, after hearing the parties, decreed the suit as aforesaid. Aggrieved by the said judgment and decree, legal representatives of original defendant filed an appeal before appellate Court.
(3.) During the pendency of the appeal, original-plaintiffs Smt. Sosar Bai expired and her legal representatives were brought on record. The defendants moved an application under Order 41 Rule 27 CPC on 10.08.2005 and claimed that respondent-plaintiffs have another shop in Somani Katla, which is also a commercial place and referred to their reply to application under Order 6 Rule 17 stating that the mentioned shop came to the share of their brother Lalit Kumar, which has been demolished and there remains only vacant plot and prayed for taking the documents on record. The learned appellate Court, vide order dated 11.11.2005, dismissed the application of appellant-defendants filed under Order 41 Rule 27 CPC against which the appellant-defendants filed a writ petition bearing SBCW Petition No.7257/2005 but same was later on not pressed and withdrawn on 22.08.2007 with liberty to challenge the impugned order on appropriate grounds in the appeal pending before appellate Court. The appellant-defendants also filed another application under Order 6 Rule 17 CPC for amendment of the written statement on 04.03.2004 stating therein that the suit was filed for necessity of Rameshwar Lal and Badrilal and as Rameshwar Lal expired on 05.05.2011 and before his death he had filed a suit for partition against his brother Badrilal, in which partition of the suit premises also sought, in view of subsequent events amendment application may be allowed.;

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