- (1.) THIS is the second appeal by the tenants against the concurrent judgment and decree of eviction. The parties in this appeal would be referred as arrayed in the plaint.
(2.) THE relevant facts in brief are that the plaintiff- respondent filed a civil suit for eviction in February, 1977 with the averments that the suit premises situated in the market of Beawar is on rent with the defendant No. 1-firm having the defendants No. 2 to 4 as its partners. Eviction was sought on the grounds of default in payment of rent, reasonable and bonafide requirement of the plaintiff and his family, substantial damage to the premises and nuisance giving the details of each ground of eviction. Vide written statement having admitted the tenancy, all the grounds of eviction were denied. During the pendency of the suit, the defendant No. 2 Pukhraj expired, hence his legal representatives were brought on record. On the basis of the pleadings, issues were framed. Evidence of both the parties was recorded. Having heard learned counsel for the parties, Civil Judge (Senior Division), Beawar vide judgment dated 27.1.1990 giving the benefit of first default decreed the suit for eviction on the ground of reasonable and bonafide requirement of the plaintiff. First appeal filed by the defendants-tenants was dismissed by learned Additional District Judge, Beawar vide impugned judgment dated 2.7.1998 affirming the findings of the Trial Court on the issues of requirement, hardship and partial eviction. It is made clear that the Trial Court vide judgment dated 27.1.1990 did not decide the issue of partial eviction. In appeal the Trial Court was directed to frame the relevant issue and decide the same after recording the evidence. The Trial Court accordingly decided this issue in favour of the plaintiff vide order dated 2.6.1995. Section 100 CPC deals with second appeals. It provides that where the High Court is satisfied that a substantial question of law is involved, it shall formulate that question and second appeal shall be heard on the questions so formulated.
(3.) THE first submission made by learned counsel for the defendants-appellants is that the First Appellate Court failed to consider the evidence of the parties as provided under Order 41 Rule 31 CPC, hence the impugned judgment dated 2.9.1998 is liable to be set set aside and the first appeal may be sent back for afresh decision. Reliance is placed upon State of Rajasthan vs. Harphool Singh (dead) through his LRs. (1), Shiv Shakti Coop. Housing Society, Nagpur vs. Swaraj Developers and Others (2), Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs., (3), Rattan Dev vs. Pasam Devi (4), Smt. Patu & Ors. vs. L.Rs. of Dau Lal (5), Kerala Transport Company vs. Shahmanilal Mulchand and Others (6), and Dhurandhar Prasad Singh vs. Jai Prakash University and Others (7). On the other hand, it was contended on behalf of the plaintiff-respondent that the First Appellate Court has given the findings on all the points raised on behalf of the defendants and secondly the First Appellate Court has affirmed the findings of the Trial Court, hence, it was unnecessary to repeat and reiterate the evidence or the reasons given by the Trial Court. He placed reliance upon Girijanandini Devi and Others vs. Bijendra Narain Choudhary (8), and Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs., (supra). I have considered the said submissions in the light of the judgment relied upon. In State of Rajasthan's case (supra), the Hon'ble Supreme Court held that in first appeal it is the duty of Court to make a critical analysis of the matter before it. While taking similar view in Shiv Shakti Coop. Housing Society's case (supra), it was held that first appeal is in continuation of proceedings and right of appeal carries with it a right of rehearing on law and fact including the power to review the evidence, subject to any statutory limitations. The Hon'ble Supreme Court took the same view in remaining judgments cited hereinabove. ;