- (1.) ALL these three second appeals have been preferred against the judgment and decree dated 15.9.1998 whereby learned Additional District Judge No.2, Jaipur City, Jaipur while dismissing three appeals affirmed the judgment and decree of eviction passed by learned Civil Judge (Junior Division), West, Jaipur City, Jaipur on 9.4.1997.
(2.) THE relevant facts in brief are that the suit shop was let out on 12.8.1961 at monthly rent of Rs. 25/- to the original tenant Sh. Chhote Khan by Jaipur Cloth Retailer Association (in short the Association). THE Association vide registered gift deed Ex. 5 dated 20.2.1986 gifted this shop to Pushthi Margiya Vaishanva Mandal (in short the Mandal) under intimation to Sh. Chhote Khan vide a registered notice dated 25.2.1986. THE Mandal vide registered sale deed Ex.1 dated 12.9.1986 sold this shop to the plaintiff-landlord Sh. Bhagwan Das for a consideration of Rs. 75,000/- under intimation to Sh. Chhote Khan vide registered notice dated 4.10.1986, who filed the present suit on 25.2.1987 for arrears of rent and eviction on the grounds of default in payment of rent and personal reasonable and bonafide requirement as pleaded in paras 5 to 7 of the plaint. Vide written statement filed on 11.1.1987 the defendant- tenant Sh. Chhote Khan while admitting the facts of tenancy denied both the grounds of eviction with further pleas that the Association had no right to execute the gift deed and transaction of sale is sham and the Mandal also had no right to execute the sale deed in favour of the present plaintiff-landlord. During the pendency of the suit, the original tenant Sh. Chhote Khan expired. Hence, his legal representatives-two sons and one daughter- all the three appellants were brought on record. Both the sons Abdul Salam and Abdul Vahid filed joint written statement with the same averments as stated in the written statement of Sh. Chhote Khan, while Smt. Khatun Begam- daughter of Sh. Chhote Khan did not appear. Hence, she was proceeded against exparte on 26.7.1991. Six issues were framed. Evidence was recorded. The learned Civil Judge vide judgment dated 9.4.1997 decided issues No. 1, 2 & 6 relating to reasonable and bonafide requirement, greater hardship and partial eviction in favour of the plaintiff and also decided issue No. 4 with regard to sale deed Ex.1 in favour of the plaintiff and issue No.3 of default in payment of rent was decided against the plaintiff and decreed the suit of eviction. Three regular first appeals preferred by all the three legal heirs of Sh. Chhote Khan were dismissed vide common judgment dated 15.9.1998. Hence, these three second appeals. I have heard learned counsel for the parties on the point of admission of these three second appeals.
(3.) PRIOR to coming on merits of the appeals, it would be appropriate to deal with some of the applications filed on behalf of the appellants. It is also made clear that during the pendency of these second appeals, the appellant Smt. Khatun Begum expired, hence her legal representatives were brought on record. One application under Order 6 Rule 17 C.P.C. for amendment in the memo of appeal was filed in appeal No. 515/1998 for permission to raise legal objections under Section 14(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act). Since such objections have already been taken in remaining two second appeals, it is unnecessary to decide this application separately. Two applications-one under Order 41 Rule 27 C.P.C. and other under Order 6 Rule 17 C.P.C. for amendment in the written statement were submitted in second appeal No. 635/1998 filed by Sh. Abdul Salam. Both the applications contain similar facts that plaintiff's father Sh. Madan Gopal was carrying on business in the name and style of Madan Gopal Gordhan Das and Sh. Gordhan Das elder brother of the plaintiff is carrying on business in the name and style of Madan Gopal Mangi Lal and thus the plaintiff's father had two shops and during the pendency of the first appeal, plaintiff's father expired in the month of June, 1997 and his both the sons-the plaintiff and his elder brother Gordhan Das have got one shop each and thus the plaintiff's need has been satisfied. It was also stated in these two application that this question was raised before the First Appellate Court but the same was not considered by the First Appellate Court and these are subsequent events which should be taken into consideration either in this second appeal or permission may be granted to amend the written statement. The plaintiff-respondent filed separate reply of both the applications denying all these averments with a specific plea that plaintiff's father was having only one shop in which plaintiff's brother was and is still carrying on his business during the lifetime of their father and thus this fact is wrong that the plaintiff and his brother each have got one shop after the death of their father which took place in October, 1997 and thus this is not a case of any subsequent event. It is also significant to say here that in para 11 of the memo of appeal No. 515/1998 it is pleaded that after the death of Sh. Madan Gopal, the shop which was in possession of Madan Gopal came to the plaintiff and initially Sh. Madan Gopal had two shops. In one shop Sh. Madan Gopal was carrying on business in the name and style of Madan Gopal Gordhan Das while in second shop he was doing business in the name and style of Madan Gopal Bhagwan Das and now the plaintiff has started his business in the said shop and thus the plaintiff's need stands satisfied. Similar pleas were raised in para 8 of remaining two second appeals with a marked difference that in second shop the plaintiff's father was carrying on business in the name and style of Madan Gopal Mangi Lal. Learned counsel for the appellants submitted that these are subsequent events which should be taken into consideration by this Court or permission for amending the written statement should be granted and the case may remanded to the trial Court for fresh consideration. Learned senior counsel Sh. Mehta appearing for the plaintiff-respondent No.1 opposed these applications. A bare perusal of para 11 of second appeal No. 515/1998, para 8 of remaining two second appeals and the contents of both the applications filed under Order 41 and under Order 6 C.P.C. goes to show that the appellants have taken contradictory pleas in this regard. On the one hand it is pleaded that the plaintiff's father was carrying on business in these two shops respectively in the name and style of Madan Gopal Gordhan Das and in the name and style of Madan Gopal Bhagwan Das and on the other hand it is pleaded that the plaintiff's father was doing business in the second shop in the name and style of Madan Gopal Bhagwan Das and the third contradictory plea taken is that the plaintiff's father was carrying on business in the second shop in the name and style of Madan Gopal Mangi Lal. Hence, even prima facie the pleas raised on behalf of the appellants appear to be not reliable at all. Secondly, the plaintiff no where pleaded that his father was carrying on business in two shops in different name and styles as has been stated in second appeal by the appellants and it is also significant to say here that neither Sh. Chhote Khan nor his two legal heirs pleaded in their statement that the plaintiff's father was carrying on business in two shops in different names. Therefore, both the applications being devoid of merit, are hereby dismissed. I have heard learned counsel for the parties on merits. Section 100 of Code of Civil Procedure provides that second appeal shall lie to the High Court only when the High Court is satisfied that the case involves a substantial question of law and if the High Court is satisfied that a substantial question of law is involved, it shall formulate such questions and then the appeal shall be heard on the questions so formulated by the Court. ;