- (1.) This civil second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 17.4.2009 passed by Additional District Judge No.9, Jaipur City Jaipur in Civil Regular Appeal No. 60/2006 whereby the learned First Appellate Court has upheld and affirmed the judgment and decree dated 27.7.2001 passed by learned trial Court i.e. Additional Civil Judge (Junior Division) East, Jaipur in Civil Suit No.172/93 whereby suit filed by plaintiff-respondents for eviction on the ground of bonafide and reasonable necessity was decreed.
(2.) With the consent of the learned counsel for the parties, the appeal was admitted on the following substantial questions of law and the same was heard finally:- (i) Whether the necessity shown by the plaintiff-landlord can be said to be not bonafide and reasonable in view of the fact that he ceased to do business in the year 1985 and after purchasing the tenanted premises in the year 1990, he filed the suit in the year 1993? (ii) Whether the necessity of the plaintiff-landlord can be said to be reasonable and bonafide even when he purchased the tenanted premises with a sitting tenant rather than purchasing a shop with vacant possession? (iii) Whether the necessity of the plaintiff-landlord can be said to be reasonable and bonafide even when he has got vacant possession of adjacent shop in the same premises during pendency of the first appeal and has failed to commence business in that shop?
(3.) For the disposal of this appeal following facts are relevant which are now not in dispute between the parties:- (1) Before 1965 the plaintiff-respondent (landlord) was doing cloth business in Amritsar and thereafter he shifted to Jaipur with his family members and started business as a Cloth Merchant in a rented shop and in the year 1985 he voluntarily surrendered possession of the rented shop to his landlord and close down his cloth business and after that he is not doing any business or occupation. (2) Elder son of respondent Shri Rajendra in the year 1988 shifted to Meerut and since then he is continuously doing business as a commission-agent of cloths in partnership. Another son of respondent Shri Subhash Kumar Mehra is in Government Service. (3) Respondent purchased a house vide registered sale deed dated 15.11.90 having two shops in the front portion of it. In one of the shops Shri Jaswant Lal was tenant at that time whereas in the suit shop defendant-appellant was a sitting tenant. The respondent with his family members is residing in the back portion of the house since the time of its purchase. Each of the shops is of the size of 9' x 8'. (4) The respondent filed the present suit for eviction with the averment that he and his son Shri Rajendra require it to do cloth business in it claiming that their requirement is bonafide and reasonable. The respondent also filed a suit for eviction from the other shop with the same averments. In both the suits the case of the respondent was that after getting vacant possession of both the shops, he will convert them into one shop and use it for cloth business. (5) The respondent has got vacant possession of the other shop on 30.4.2007 during pendency of the first appeal but has failed to use it for cloth business or for any other business. (6) During pendency of the suit respondent has constructed two rooms each of the size of 12 ft x 12 ft. on the upper floor of the house for residential purpose. (7) Age of the respondent at present is more than 80 years and he has experience of more than 50 years in business of cloths. (8) The present suit was filed on 30.4.1993 i.e. after two and half years from the date of purchase of the suit shop. (9) The defendant-appellant alleged that the respondent gave up possession of his rented shop to his landlord in consideration of receipt of huge amount as premium in cash but this allegation has been held not established both by the trial Court as also by the first appellate Court.;