- (1.) HEARD learned counsels for the parties.
(2.) THE defendant � tenant � appellant has preferred the present second appeal under Section 100 of Civil Procedure Code aggrieved by the judgment and decree of the eviction granted by the learned appellate court below of learned District Judge, Bhilwara in Appeal No.14/2000 � Jaswant Singh vs. Parasmal, reversing the decree of learned trial court dated 30.11.1999 dismissing the eviction suit No.113/1995 � Jaswant Singh vs. Parasmal. The eviction was sought on the ground of bonafide need of son of plaintiff � Jaswant Singh namely Arvind Kumar, who was about 24 years of age at the time of the filing of the suit in the year 1995. The learned trial court decided the issue of bonafide need against the plaintiff-landlord, inter alia, on the ground that the said son Arvind Kumar was found to be sitting at the business place / shop of one Shobha Lal, who was said to be related to the father � plaintiff Jaswant Singh and the said suit shop was mortgaged by one Shri Jathelia in favour of Shobha Lal. Father Jaswant Singh � the plaintiff was said to be suffering from epilepsy for last 20 years and was, therefore, not in a position to carry on his own business independently. The learned trial court also found that that the defendant � tenant had originally five shops in tenancy from the same landlord, out of which possession of four shops was given to the landlord, which were let out to different persons prior to filing of the suit. The present suit shop is measuring 12 x 25 ft., which is in the possession of the defendant � tenant since 1975. The learned trial court dismissed the said suit, however, the learned first appellate court reversing the said judgment and decree, found that PW-1 Arvind Kumar son of plaintiff - Jaswant Singh, for whose need the eviction was sought, had appeared before the court and stating the illness of his father Jaswant Singh, affirmed the need of eviction in view of his intended business of electric shop in the said suit shop. While admitting the present second appeal, a co- ordinate Bench of this Court framed the following substantial question of law for consideration on 10.03.2003: "Out of five shops originally in possession of the tenant, four were already vacated and given possession to the landlord. The landlord himself is incapacitated due to physical ailment. Can it be said in these circumstances that he bonafidely requires the only shop in possession of the tenant ? The reading of evidence appears to be perverse. That being the position, can a judgment of reversal be maintained ?"
(3.) LEARNED counsel for the appellant � defendant, Mr. Sajjan Singh urged that need of the plaintiff was not established as the plaintiff - Jaswant Singh himself failed to appear in the witness box though despite his illness in the form of epilepsy, he could come to the court and his son has admitted this fact and in the absence of his presence before the trial court, the bonafide need of the plaintiff � respondent could not be established by PW-1 Arvind Kumar, the son for whose need, eviction was sought. Opposing the application filed under Order 41 Rule 27 CPC by the plaintiff � respondent namely IA No.1285/2012, learned counsel for the appellant � defendant, Mr. Sajjan Singh submitted that the facts alleged subsequent developments are of the year 2005 and the present application has been filed in the year 2012, therefore, being belated application, the same deserves to be rejected. He submitted that the learned trial court was justified in rejecting the suit for eviction and the learned appellate court has erred in reversing the decree. The bonafide need of the son Arvind Kumar could be satisfied upon alternative accommodation in the form of four shops becoming available to the plaintiff, just prior to the filing of the present suit in the year 1995 and, therefore, merely on the whims or desires of the plaintiff, the eviction cannot be sought. Per contra, learned counsel for the plaintiff � respondent � landlord, Mr. Arun Bhansali urged that the ground on which the learned trial court dismissed the suit was that the mortgaged shop in question, which was mortgaged one by Shri Jethelia to Shobha Lal � elder brother of plaintiff � Jaswant Singh itself has since been handed over back to the mortgagor vide decree of the court in Civil Original Suit No.09/2004 on 29.07.2005 and pursuant to such redemption of mortgage, the possession of said suit shop has been handed over back to the mortgagor Mr. Jethalia. Be that as it may, he submitted that these subsequent developments are merely to show that even the sitting of the plaintiff's son Arvind Kumar on that shop, is an event which has now ended. Irrespective of that, he urged that the said son Arvind Kumar could not be expected to remain unemployed during the period of this litigation pending since 1995 and, therefore, nothing turned upon such evidence before the trial court on the basis of which the learned trial court perversely found that the need of the plaintiff � landlord was not justified and bonafide. He submitted that PW-1 Arvind Kumar, in his statement recorded on 06.12.1996, has clearly stated before the learned trial court that his father � the plaintiff Jaswant Singh was suffering from a kind of disease epilepsy, which rendered him incapacitated to come to the trial Court and give the statements properly. Since the bonafidee need was sought for the son Mr. Arvind Kumar himself only, he has appeared before the learned trial court and has affirmed his bonafide need and has withstood with his stand even in his cross-examination. The mere availability of the four shops, out of five shops originally in possession of the defendant � tenant, prior to the filing of the suit, cannot be said to have satisfied the bonafide need of the plaintiff � landlord and it is the need at the time of the filing of the suit which is important and admittedly since one of the shops was in the possession of the appellant � defendant, was only the available shop at the time of filing of the suit, for which need was established by PW-1 Arvind Kumar, learned appellate court below was perfectly justified, based on a proper and correct appreciation of the said evidence to direct eviction of the suit shop. ;