SUNIL KUMAR GARG, J. - (1.) THIS is a second appeal filed on behalf of the appellant-defendant against the judgment and decree dated 11.8.1980 passed by the learned Civil Judge, Bikaner, by which the learned Civil Judge, Bikaner dismissed the appeal of the appellant-defendant and upheld the judgment and decree dated 28.4.1978 passed by the learned Munsiff, Bikaner, by which the learned Munsiff, Bikaner decreed the suit of the plaintiff-respondent for eviction of the defendant-appellant on the ground of reasonable bonafide necessity as envisaged under Section 13(1)(h) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act of 1950'). Note :- That during the pendency of this second appeal, the respondent- plaintiff Bulakidas died on 17.8.1995 and, thereafter, his L.Rs. were brought on record on 13.8.1999 in this second appeal.
(2.) THE facts giving rise to this second appeal are as follows :- The plaintiff respondent-Bulakidas now deceased (for future he will be referred as deceased plaintiff) had filed a suit on 11.12.1970 in the Court of Munsiff, Bikaner for arrears of rent and ejectment stating that the defendant-appellant is a tenant in the premises situated at Court Gate in Bikaner and the defendant appellant took that premises on monthly rent of Rs. 30/- and he also executed a rent note Ex.1 on 1.5.1968 in favour of the deceased plaintiff and the deceased plaintiff seeks eviction of the appellant defendant on two grounds - (i) that the defendant appellant had committed default in payment of rent. Note :- This point is not in dispute in this second appeal and the case of the deceased plaintiff for eviction of appellant defendant is based on the ground of reasonable bonafide necessity. (ii) That the deceased plaintiff lived in the house of his brother and since there was quarrel among the ladies and he has no house of his own, therefore, he wants his own house i.e. disputed premises, which is in the possession of the defendant appellant as a tenant and his brother also wanted that his brother deceased plaintiff should vacate his house, and therefore, the premises in question are required by the deceased plaintiff reasonably and bonafidely and for that he wants eviction of the appellant defendant. Note :- That during the pendency of the suit, on 19.3.1976, the deceased plaintiff filed an application under Order 6 Rule 17 CPC, which was allowed by the lower Court and one more para Kha Kha was added in the plaint and amended plaint was filed by the deceased plaintiff in the lower Court on 26.5.1976 and amended para Kha Kha runs as under :- (Vernacular matter omitted). The case of the deceased plaintiff is that the suit premises are required by him reasonably and bonafidely and, therefore, suit be decreed against the appellant defendant. The suit of the decease plaintiff in the lower Court was contested by the appellant defendant by filing a written statement on 30.7.1971 amended on 4.8.1976 admitting that he is the tenant of the deceased plaintiff and the deceased plaintiff is living in his own house situated at Mohallah Sutharon-ki-Badi Gawad in Bikaner and the deceased plaintiff has ration card in his own name where the address of this house is mentioned and he is not living in the rented house as alleged by the deceased plaintiff in his amended plaint and the defendant appellant has no other alternative accommodation and he is living in the disputed house for the last 20 years and initially rent was Rs. 15/- p.m. and later on, it was increased before the execution of the rent deed. The deceased plaintiff is living with his brother and no partition has taken place between the deceased plaintiff and his brother and the deceased plaintiff is taking the excuse of partition only to get the house in dispute vacated from the defendant appellant, otherwise there is no need for him and, therefore, the suit of the deceased plaintiff be dismissed. On the pleadings of the parties, the learned lower Court framed the following issues on 12.11.1971 and amended issue No. 5 on 6.10.1976 : (Vernacular matter omitted). Before the amendment of the plaint and written statement, both the parties led evidence and produced some documents. Three witnesses were examined on behalf of the deceased plaintiff and seven witnesses were examined on behalf of the appellant defendant. Note : That when the plaint was amended in the year 1976, both the parties did not lead any evidence after the amended issue No. 5. The learned Munsiff, Bikaner vide his judgment and decree dated 28.4.1978 decreed the suit of the deceased plaintiff against the defendant appellant for eviction of the appellant defendant on the ground of reasonable bonafide necessity and decided issues No. 2 and 5 in favour of the deceased plaintiff and against the defendant appellant. Aggrieved from the judgment and decree dated 28.4.1978 passed by the learned Munsiff, Bikaner, the appellant defendant preferred an appeal in the Court of District Judge, Bikaner, which was transferred to Civil Judge, Bikaner and the learned Civil Judge, Bikaner vide his judgment and decree dated 11.8.1980 dismissed the appeal of the appellant defendant and upheld the judgment and decree dated 28.4.1978 passed by the learned Munsiff, Bikaner. Note :- From the perusal of the file of the first appeal, it appears that an application under Order 41 Rule 27 CPC was filed by the defendant appellant on 11.7.1980 requesting for taking on record four documents, but the learned Civil Judge, while deciding the appeal on 11.8.1980 did not pass any order on this application of the defendant appellant and the same remained pending in the file. Aggrieved from the judgment and decree dated 11.8.1980 passed by the learned Civil Judge, Bikaner, the appellant defendant has filed this second appeal in this Court. During the pendency of this second appeal, this Court passed an order dated 16th March, 1999 on the application dated 11.7.1980 under Order 41 Rule 27, which was lying pending in the file of the first appeal and this Court framed the following two issues to be determined by the first appellate Court :- "(1) Whether the documents accompanying the application moved under Order 41 Rule 27, CPC before the learned first appellate Court are receivable in evidence in the present case within the meaning of Order 41 Rule 27, CPC ? (2) Whether the documents accompanying the application moved under Order 41 Rule 27 CPC are relevant and admissible to the controversy involved between the parties ?"
(3.) THE learned Civil Judge on receiving the order of this Court dated 16th March, 1999, passed an order on 1.6.1999 and held :- (1) That the documents which were produced by the defendant appellant alongwith the application under Order 41 Rule 27 CPC are not appropriate to be taken on record; (2) That looking to the dispute between the parties, these documents are not relevant and should not be taken on record. ;