BALIA, J. - (1.) THIS revision is directed against the order dated 19. 11. 1991, by the impugned order, learned Civil Judge, Sojat has allowed the application of the applicant under O. 41 R. 27, CPC for leading additional evidence in respect of subsequent events that has happened during the pendency of the suit.
(2.) PURSHOTTAM, the deceased-plaintiff, has filed a suit for eviction against Bhagwandas from the suit premises, which is a shop, situated at Sojat, inter alia, on the ground that the suit shop is required reasonably and bonafide for the requirement of his son Harish to do business therein. The suit was filed in 1975. The suit was decreed in the first instance. However, this Court in Second Appeal, remanded the case for trial afresh in 1987, Thereafter, the suit was again decreed by the trial Court. While the appeal was pending before the Civil Judge, the defendant moved an application that Harish, for whose need the suit premises were required, has since the filing of suit, obtained a degree in Law and has enrolled himself as an advocate by with the Bar Council of Rajasthan. It was further alleged that after enrolment, said Harish has started practice, first at Bali and then at Sojat. Thus, the son of the landlord having taken another vocation, the need pleaded has come to an end. The fact of obtaining Sanad by Harish had not been denied in reply. However, it is stated that notwithstanding enrolment as an Advocate, Harish is still almost brief less and unemployed and he still needs that suit shop for doing business. The lower appellate Court allowed the application, observing that on the admitted facts, the question do require investigation into certain facts, which have relevant bearing on the existence of need at the time of passing of decree by the lower appellate court and on the question of comparative hardship. He, therefore, directed the trial court under O. 41 R. 28, C. P. C. to record evidence on the plea raised in the application and reply thereto and submit the same to the appellate court for deciding the appeal. It is against this order that the plaintiff has preferred this revision. It is contended by learned counsel for the petitioner that the fact that the plaintiff has taken degree in Law and obtained Sanad is not relevant for deciding the issue relating to reason able and bonafide requirement, in as much as it is not expected of the plaintiff-landlord or the member of the landlord's family for whose requirement the suit premises was sought to be vacated, to sit idle throughout the period the litigation remains pending and starve. The mere fact that during the pendency of suit, the plain tiff or person for whose need the suit shop was required, has taken to other profession, vocation or business, as stopgap arrangement, does not lead to any interference that the need of the plaintiff has ceased to exist. Therefore, the application under O. XLI R. 27, CPC has been allowed by the lower appellate court, by committing an error of law by taking into consideration irrelevant circumstances. While there cannot be any dispute with the proposition that merely because the person for whose requirement the suit premises arc required, has taken to engage himself in any other profession, vocation or business, during the pendency of the Suit; does not necessarily lead to conclusion that need pleaded by the plaintiff has ceased to exit and, that looking to the long delays which are ordinarily taken in final decision of the suits of the present nature, a person would sit idle and that such diversion or engagement has no relevant bearing on the issue relating to existence of a reasonable and bonafide requirement of the plain tiff at the time the decree is passed, which also includes the question of comparative hardship between the plaintiff-landlord and the defendant-tenant. The question whether such engagement by the plaintiff or the person for whose requirement suit has been filed, is a stop-gap arrangement during the pendency of the suit or is a total deviation from the original requirements pleaded?, is a question of fact, which necessarily depend upon evidence and cannot be decided on the pleadings of the parties only, if the same are not admitted by the parlies. In that 'view of the matter, I am of the opinion that the lower appellate court has not committed any error in allowing the application under O. 41 R. 27, CPC to the extent, it has been allowed by the lower appellate court. It may be noticed that defendant has asked permission to lead evidence on certain other points also, which was refused. It was next contended by learned counsel for the petitioner that even if the application under O. 41 R. 27, CPC was to be allowed, since the fact of taking Sanad by the said Harish was admitted, there was no need for the lower appellate court to have taken recourse to procedure under O. 41, R. 28, C. P. C. , for sending the case back to the trial court for recording evidence on the issue arising out of the application, inasmuch as, according to learned counsel, the taking of Sanad by said Harish only raised certain legal issues as to the effect of enrolment as an Advocate with the Bar Council on capacity of said Harish to carry on business. He further made a statement that in case the suit is decreed, Harish will surrender his Sanad and will occupy the suit premises for doing the business, I am afraid, the question is not that simple and straight. After all, with what intention the plaintiff has taken recourse to another profession, vocation or business and with that vigour he is persuing with that engagement and to that extent it affects the vigour of requirement and consequently, the question of comparative hardship; are all questions of facts, depending on evidence that is brought on record. Even the question of legal effect of taking the Sanad for practising on the person's capacity to carry on business has no one answer. One may carry on business in breach of the rules laid down by the Bar Council in this regard, which may or may not affect his eligibility to do business, but may affect his professional career. Again, the question may depend upon whether he holds a Sanad at the time when he commence business. Therefore, in my opinion, the contention of learned counsel that the issue arising as a result of admitted position that the plaintiff has enrolled himself as an Advocate, raises purely a question of law, cannot be accepted.
(3.) AS a result, this revision must fail and is accordingly dismissed summarily. However, looking to the age of the case, it is imperative that the trial court be directed to comply with the order of appellate court in a fixed time-frame, with least delay. I, therefore, direct the trial court to record evidence of both the parties within 3 months and return the same to the appellate court. The recording of evidence should take place from day to day, without any adjournment and the parties may be directed to produce their witnesses, without issue of summons. The lower appellate court shall dlecide the appeal within one month of the receipt of evidence. .;