MILAP CHANDRA JAIN,J - (1.) THIS appeal has been filed by the defendant against the judgment of the learned Additional District Judge No. 2, Sri Ganganagar dated September 4, 1990 by which he allowed the plaintiff's appeal and decreed the suit of ejectment on the ground of sub-letting. The facts of the case may be summarised thus.
(2.) THE plaintiff-respondent filed a suit for ejectment against the defendant from the shop No. 60, Kotwali Road, Sri Ganganagar on the ground of default in payment of rent, bonafide and reasonable necessity and sub-letting to one Ram Kumar. The ground of default was not pressed before trial Court as the determined amount of rent was deposited in time and monthly amount was also regularly deposited. The trial Court dismissed the suit deciding both the surviving grounds against the plaintiff. In appeal, the ground of reasonable and bonafide necessity was not pressed. Only the ground of sub-letting was pressed. The appellate Court held that the plaintiff Gopiram had sub-let the suit shop to Ram Kumar and accordingly allowed the appeal and decreed the suit by its judgment under appeal. It has been contended by learned counsel for the defendant-appellant that the learned appellate Court has not considered the reasons given by the trial Court in support of its conclusion that sub-letting is not proved and has reversed this finding on untenable and inadmissible grounds. He further contended that the appellate Court committed a serious error in ignoring the entries Ex. A/5 to A/58 of the account-books of M/s. Rajasthan Bearing and Machinery Store, the certificate Ex. 59 dated July 15, 1971 issued under the Rajasthan Shops and Commercial Establishments Act, 1958 in favour of Ram Kumar Proprietor M/s. Rajasthan Bearing and Machinery Store and the certificate Ex. A/60 issued under the Rajasthan Sales Tax Act in the name of M/s. Rajasthan Bearing and Machinery Store, Sri Ganganagar. He also contended that the appellate Court did not take into consideration that there was no evidence on record to prove that the possession of the demised shop was in fact given to the defendant Ratanlal at the time of commencement of the tenancy and there was complete lack of pleadings and proof as to when the possession of the suit shop was given by the defendant Ratanlal to the sub-tenant Ram Kumar and also about the terms and conditions of the alleged sub-tenancy. He also contended that the first appellate Court did not take into consideration that the plaintiff himself admitted in his cross-examination that since the commencement of the tenancy business under the name and style of M/s. Rajasthan Bearing and Machinery Store was being carried on in the suit shop. Ram Kumar is sitting in the suit shop and the Gopi Ram is carrying on his cloth business under the name and style of M/s. Jain cloth Store in Gol Bazar, Sri Ganganagar. He further contended that the learned appellate Court failed to consider that in an ejectment suit the plaintiff can succeed on the strength of his own evidence and not on the weakness of the defendant.
(3.) THE learned counsel for the plaintiff-respondent duly supported the judgment under appeal. He contended that the defendant has failed to prove the case set up by him in his written statement, there is great variance in between his pleading and proof, the plaintiff can support the decree of ejectment on ground mentioned in clause (f) of sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be called as 'the Act'). In the end he also contended that the appeal may be remanded to the first appellate Court for deciding it afresh.;