- (1.) HEARD learned counsel for the parties.
(2.) BY the concurrent decrees, the two courts below have granted decree of eviction against the appellant- defendant-tenant on the grounds of default in payment of rent and nuisance. The shop in question measuring 15x8 ft. was let out to the defendant-tenant to run the business of scooter repairs known as "Preeti Auto Reparis" situated at Station Road, Kankroli, Tehsil and District Rajsamand. The suit in question was filed in 1996 and after trial, the learned trial tourt decreed the suit No.50/03 (Old No.78/96, 27/2000) on 24.02.2004. The first appeal No.153/2007 filed by the appellant-defendant � tenant also came to be dismissed on 16.10.2008. The findings of the default while deciding the issue No.2 are given by the appellate court on page Nos.12 and 13 of the impugned judgment, whereas the findings of the nuisance are given on page 21 of the appellate court. Learned counsel for the appellant-defendant urged that the findings recorded by the learned trial court are incorrect since the application under Order 41 Rule 27 was wrongly rejected by the appellate court, with which the rent receipts of the appellants were produced by the appellant. He also submitted that there was no complaint of any nuisance by any of the neighbours and since the landlord himself was not living at the suit premises, there was no question of nuisance and findings in this regard are not correct and accordingly substantial questions of law arise in the present matter. On the other hand, learned counsel for the respondent-landlord, Mr. D.R. Bhandari submitted that these are the findings of facts based on cogent reasons and correct appreciation of the evidence and there is no substantial question of law arising in the present second appeal for further consideration under Section 100 CPC. The second appeal does not permit the third trial or reappreciation of evidence by this Court. He relied upon a decision of this Court in the case of Prakash Chand & ors. vs. Firm Poham Singh Kishan Sahai & ors reported in 2006(4) RLS � 2763, in which this Court held that the obligation of tenant to continuously pay rent as per Section 13(4) is not dispensed with even if landlord fails to apply to the court for striking out defence of tenant under Section 13 (5) of the Act, the decree of the eviction can be granted. He urged that from the perusal of the findings of the courts below, it is clear that the default in payment of the rent was continuous and the tenant failed to pay any rent after determination under Section 13(3) of the Act and the receipts produced by him were rightly not taken on record since the same did not represent the continuous payment of rent by the tenant. Having heard learned counsel for the parties, this Court is of the opinion that no substantial question of law arises in the present second appeal requiring further consideration by this Court under Section 100 CPC. The findings arrived at by the courts below are cogent findings of fact and are based on relevant material and evidence. This Court is, therefore, not inclined to interfere with the concurrent judgments of the two courts below
(3.) THE appeal of defendant-tenant is thus, found to be devoid of merit and the same is accordingly dismissed. No order as to costs. The appellant-defendant shall hand over the peaceful & vacant possession of the suit premises to the plaintiff -respondent within a period of six months from today and shall also pay arrears of rent and mesne profit @Rs.1500/- per month till the date of handing over the vacant and peaceful possession of suit premises to the respondent - landlord. It is made clear that in case, the defendant- appellant (tenant) does not hand over the peaceful and vacant possession within a period of six months from today as directed by this Court, then it will be open for the plaintiff-respondent landlord to get the decree passed in his favour executed and to initiate contempt proceedings against the appellant in this Court. A copy of this order be sent to the trial court forthwith.;