- (1.) HEARD learned counsels for the parties for final disposal at this stage by their consent.
(2.) THIS second appeal of plaintiff-appellant-landlord is directed against the judgment and decree dated 17.11.2008 passed by learned first lower appellate court whereby the first appeal filed by the respondents-defendants-tenant being Civil Appeal No.53/08- Ratan Lal & Anr. Vs. Joyab Ali, came to be allowed reversing the judgment and decree dated 16.09.2008 passed by learned Civil Judge (Jr. Division), Udaipur City (North), Udaipur in Civil Original Suit No.331/02- Joyab Ali Vs. Ratan Lal & Anr. decreeing the plaintiff's suit for eviction. The following substantial question of law arises for consideration by this Court: "Whether the first appellate court was justified in reversing the findings of trial court in relation to bonafide need although ample evidence has been led by the plaintiff in this respect?" The learned lower appellate court below has reversed the findings of the learned trial court about the bonafide need of the plaintiff-landlord vide the impugned judgment and decree dated 17.11.2008 and observed that after the execution of the Release- Deed in favour of plaintiff in respect of suit shop in question, though he has stated in his statements recorded by the trial court in his affidavit (examination-in-chief) vide para 5 of the said affidavit that he has passed B. Com. Course, and he want to start his business of garments, however, since the shop in question, measuring 12'x13' was in possession of the tenant, he is perforce presently doing service in a company known as "Trident Hotel" in Udaipur. He has further stated in para 6 of the said affidavit that he wanted to do the said business in his own shop in question. In the cross-examination of the said plaintiff recorded by the learned court below on 19.10.2005 also, the plaintiff has reiterated the said need of the shop for starting the business of garments. So far as another shop situated at 'Kolpol', Udaipur is concerned, it was stated that the same was in the ownership of his father and other family members and, therefore, a particular release- deed was executed in his favour in respect of the suit shop in question. The relationship of the landlord and the tenant is not in dispute and the defendant-tenant has also accepted it and, therefore, the attornment in favour of present plaintiff, took place undoubtedly. Merely saying in his cross-examination that there is no loss will be caused to him, if the vacant possession of the suit shop is not handed over, does not mean that the plaintiff does not have the bonafide need of the suit shop in question. The plaintiff is not expected to remain unemployed for want of vacant possession of the suit shop in question and cannot compute such loss and state it before the Court.
(3.) CONSEQUENTLY, in the face of these evidences before the learned trial court, the lower appellate court has erred in reversing the finding of learned trial court and rejecting the suit for eviction on the said ground of bonafide need of the landlord. The substantial question of law framed above, is accordingly, answered in favour of appellant-plaintiff-landlord. The matter is accordingly remanded back to the learned first appellate court below to re-appreciate the evidence in correct perspective and decide the appeal expeditiously, preferably within a period of six months from today. In the result, the present second appeal filed by the appellant-plaintiff is allowed. Record of the courts below may be sent to the learned appellate below of Additional District Judge, No.3, Udaipur forthwith.;