GOYAL, J. - (1.) THE defendant-tenant has preferred this second appeal against the judgment and decree dated 22. 7. 2002 whereby the learned Additional District Judge No. 1, Jaipur City, Jaipur affirmed the judgment and decree of eviction dated 5. 3. 2001 passed by the learned Civil Judge (Junior Division), Jaipur City (West ).
(2.) BRIEFLY narrated the facts are that the plaintiff-respondent filed a civil suit for eviction and permanent injunction in March, 1991 with the averments that the plaintiff's father Abdul Karim let out the suit shop to the defendant on 1. 1. 1975 on monthly rent of Rs. 60/ -. On account of some repairs, the rent was enhanced to Rs. 75/- per month. Eviction was sought on grounds of default in payment of rent, closure of the shop for more than six months, reasonable and bonafide requirement. It was prayed that the defendant may be restrained from parting with possession of the suit shop. The defendant vide written statement, having admitted himself to be the tenant denied all the grounds of eviction, with the objection that the plaintiff alone had no right to file the suit as there are other legal heirs of the original landlord Abdul Karim. Issues were framed and evidence was recorded. Learned Civil Judge (Junior Division), Jaipur City (West) vide judgment dated 5. 3. 2001 held that the plaintiff failed to prove the closure of the shop by the defendant for a period of more than six months without any reasonable cause; that the plaintiff has proved his reasonable and bonafide requirement; that comparative hardship would because to the plaintiff; that partial eviction would not serve purpose of the either party as measurement of the shop in question is 4` 6" x 9'; that defendant had paid rent to the plaintiff treating himself to be his tenant after the death of Abdul Karim and thus, passed the decree of eviction. First appeal filed by the defendant was dismissed vide judgment dated 22. 7. 2002. I have heard learned counsel for the parties.
(3.) LEARNED counsel for the appellant contended that the findings of the courts below on the issue of reasonable and bonafide requirement and comparative hardship are perverse. The application under Order 41 Rule 27 CPC was filed along with certain documents in the first appellate court on 2. 2. 2002. Arguments on this application were heard and thereafter, it was observed that this application shall be considered at the time of hearing of the appeal itself but the first appellate court did not consider this application while deciding the first appeal and therefore, this involves a substantial question of law. It was next submitted that during the pendency of the proceedings, the plaintiff-landlord let out a big showroom on higher rent after getting a sum of Rs. 5,56,000/- as `pagri' and that the plaintiff got vacant possession of one more shop from other tenant but the courts below did not take into consideration these relevant facts and thus, the findings are erroneous and that the documents filed with the application under Order 41 Rule 27 CPC were relevant to falsify the case of the plaintiff that due to construction of stairs in the shop which was got vacated from Verma Watch Co. the plaintiff is unable to do his business in that shop as there were already stairs from the Chowk of the house of the plaintiff to go over the roof and thus, the concurrent findings of the courts below are perverse and substantial question of law arises in this second appeal. He has placed reliance on Mohan Das vs. Bachan Lal (1), wherein it was held by this court that the appellate court should decide the application for additional evidence in appeal along with the appeal itself. Similar view was taken by this Court in Smt. Jamna and Others vs. Bhuwana The Apex Court in Wadi vs. Amilal and Others (3), held that vigilance or negligence of the party is not relevant and the additional evidence in appeal should be allowed if the document in question throws light on germane issue. In Gurdev Singh and Others vs. Mehnga Ram and Another (4), it was held that the appellate court has jurisdiction to pass order under Order 41 Rule 27 (b) CPC one way or the other and that can be challenged in second appeal against the appellate decree but such an order should not be interferred in revisional jurisdiction at interim stage. Per contra, learned counsel for the plaintiff-respondent submitted that if the documents filed along with application under Order 41 Rule 27 CPC are taken into consideration, the findings of the courts below on the issues of reasonable and bonafide requirement and comparative hardship are not affected at all as these documents have no bearing on these findings. It was also contended that the evidentiary value of these documents was considered by the Trial Court. It was also constended that no showroom was let out in the year 1996 after filing the present suit, rather it was already with the tenant since 1985 and on account of fire, the said shop was rebuilt and thereafter, rent was enhanced. It was also contended that the other shop, which was got vacated from Verma Watch Co. belongs to Abdul Wahid who is brother of the plaintiff and findings on the issue of reasonable and bonafide requirement and comparative hardship are concurrent and no substantial question of law arises. He has placed reliance upon some judgments. In Vishnu Iron & Steel Industries vs. Govind Ram (5), it was held that if the defendant does not press the application under Order 41 Rule 27 CPC, he can have no grievance against its own negligence and none of the documents sought to be adduced are remotely relevant to the controversy. In Ram Nibas Gagar (dead) by LRs. vs. Debojyoti Das and Others (6), it was held that belated efforts to introduce subsequent events in order to break down the findings of fact would not be just. In Sadhu Ram vs. Ghasi Ram (7), this court held that since the applicant was having knowledge about the documents but he did not produce them before the Trial Court, his application under Order 41 Rule 27 CPC was rightly rejected by the first appellate court. In Pakeerappa Rai vs. Seethamma (dead) by LRs and Others (8), it was held that the High Court in second appeal cannot interfere even with the erroneous findings of fact howesoever gross error seems to be. In Hamida and Others vs. Md. Khalil (9), it was held that where the first appellate court has reached findings of fact based on evidence on record, High Court in second appeal would not be justified in taking a different view merely on the basis of reappreciation of such evidence. ;