- (1.) The defendant-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 31.07.2010 passed by the Additional District Judge No.2, Sikar in Civil Regular Appeal No.171/2008 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 16.05.2006 passed by the trial Court i.e. Civil Judge (Junior Division) No.2, Sikar in Civil Suit No.156/2003 whereby the suit for eviction filed by the plaintiffrespondent was decreed.
(2.) Brief relevant facts for the disposal of this appeal are that the respondent-landlord filed Civil Suit No.156/2003 in the trial Court against the tenant-appellant for eviction from the suit shop with the averment that the suit shop is bonafidely and reasonably required by him for the use and occupation of his son Shri Shakeel to do the business of general goods for which he has suffficient experience. The appellant filed written statement and denied the requirement shown by the respondent with the averment that the2 son of the respondent is presently residing in Saudi Arab and is earning a huge amount of money and, therefore, the requirement shown by the respondent for the suit shop is not bonafide and reasonable. It was also averred by the appellant that adjacent to the suit shop there is another shop of the respondent which was previously on rent with one Shri Gaffar Pathan but it was got vacated about 18 years ago and it is available to the respondent for his use and occupation. It was further averred that in case decree of eviction is passed the appellant will face more hardship in comparison to the respondent. On the basis of pleadings of the parties, necessary issues were framed and both the parties led evidence in support of their respective case. The learned trial Court after hearing both the parties came to a conclusion that the need shown by the respondent is bonafide and reasonable and if decree for eviction is not passed in comparison to the appellant the respondent will face more hardship. It was also held that both the parties agreed that decree for partial eviction is not possible. On the basis of evidence available on record the trial Court found that son of the respondent is temporarily residing in Saudi Arab and working as a labour there but that does not mean that the requirement shown for the suit shop has come to an end and it is not reasonable and bonafide. It was further held that the adjacent shop to the suit shop is being used by the respondent for his and his family members residence and for storing house hold goods and, therefore, it cannot be said that it is lying vacant and it can be used for the need shown by the respondent. Consequently upon the findings arrived at the3 suit filed by the respondent was decreed. Feeling aggrieved the appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide impugned judgment and decree dated 31.07.2010. On the basis of evidence available on record, the learned appellate Court concurred with the findings arrived at by the trial Court. Still dissatisfied the tenant-appellant is before this Court by way of this Civil Second Appeal.
(3.) Assailing the impugned judgment and decree passed by the Courts below the learned counsel for the appellant has raised the following grounds:- (i) In the written statement filed by the appellant it was specifically averred that the son of the respondent Shri Shakeel for whose requirement the present suit for eviction has been filed is presently residing in Saudi Arab and by doing a job there he is earning a huge amount of money and it was further averred that a shop adjacent to the suit shop is lying vacant and is available to the respondent for the use and occupation of his son but even then no rejoinder was filed by the respondent denying the specific averments made by the appellant in the written statement and thus there being no pleading in the form of rejoinder or otherwise the respondent was not entitled to led evidence to controvert the averments made in the plaint but even then evidence was produced by the respondent and that evidence was not liable to be taken into consideration but both the Courts below wrongly considered that evidence and thus have committed illegality and perversity in this4 regard and the finding arrived at by the Courts below is liable to be set aside. (ii) It was for the respondent to prove that he has no alternative accommodation to satisfy the need shown by him but no pleadings and evidence has been produced by the respondent to show that he has no alternative accommodation and, therefore, the fact that a shop adjacent to the suit shop is available to the respondent negatived the requirement shown by the respondent for the suit shop as that shop can be easily used for the business of the son of the respondent. The fact that inspite of availability of another shop to the respondent business was not started in it, is a clear indication of the fact that the need shown for the suit shop is not bonafide and reasonable. (iii) It is an admitted fact that the son of respondent Shri Shakeel is presently residing in Saudi Arab and by doing a job there he is earning a lot of money and as a consequence of that the requirement shown for the suit shop has come to an end as there is no possibility that a person earning a lot of money in a foreign country will leave his job there and come back to his native place to start business in a shop having small measurement. (iv) The finding of fact arrived at by the Courts below is illegal and perverse as it has been arrived at by non consideration of relevant evidence and by considering the evidence which was not admissible due to the reason that it was led without there being pleadings in regard of it and as a result of that the finding on the issue of bonafide and reasonable necessity shown by the respondent5 is erroneous and vitiated. In support of his submissions, learned counsel for the appellant relied upon the cases of Raghunath G.Panhalre (dead) By L.Rs. Vs. M/s Chaganlal Sundarji & Co., 1999 ACJ 630, S.J.Ebenezer Vs. Velayudhan & Ors., 1998 ACJ 142, Prabha Arora & Anr. Vs. Brij Mohini Anand & Ors., 2008 ACJ 555, The National Textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad & Ors.,2011 3 ACJ 685 , Abhyudya Santha Vs. Union of India & Ors.,2011 3 ACJ 476, Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board & Ors.,2011 1 ACJ 56, Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi,2011 3 ACJ 255.;