- (1.) The present second appeal filed under Section 100 of CPC by the appellant-defendant, is directed against the judgment & decree dated 19.12.2013 passed by the Additional District Judge No.2, Jhunjhunu (hereinafter referred to as "the appellate court") in Civil Regular Appeal No.(43/12) 38/2013, whereby the appellate court has dismissed the appeal and confirmed the judgment & decree dated 18.08.2012 passed by the Additional Civil Judge (S.D.) Jhunjhunu (hereinafter referred to as "the trial court") in Civil Suit No.55/2008 (41/98) 320/1995.
(2.) The short facts giving rise to the present appeal are that initially Shri Mahesh Chandra, father of the respondent Nos.1/1 to 1/3, and husband of the the respondent No.2, and the respondent No.2 (original-plaintiffs) had filed the suit for recovery of rent and for eviction against the original-defendant Sarwar Hussain, father of the appellant No.1/1, on various grounds. It was alleged in the plaint interalia that the father of the plaintiff No.1, late Shri Satyadev had let out the suit shop to the defendant on 01.02.1963 for one year @ Rs.40 per month and the defendant Sarwar Hussain had also executed the rent note in favour of the father of the plaintiff in that regard. Accordingly, the defendant had to vacate the suit shop within one year, however he did not vacate the same, and therefore the father of the plaintiff No.1 late Shri Satyadev had filed the suit on 06.05.1975, after serving notices to the defendant on the ground of reasonable and bonafide necessity, default in making payment of rent and on other grounds. The said suit was decreed by the trial court in favour of the plaintiff i.e. late Shri Satyadev vide judgment & decree dated 06.02.1980, against which the defendant had filed the appeal. During the pendency of the appeal, the said Satyadev expired and his wife Smt. Phooli Devi was impleaded as the party-respondent in the appeal. The said appeal was allowed by the appellate court on 24.02.1986, against which Smt. Phooli Devi had preferred the second appeal before the High Court, however the said second appeal also came to be dismissed. It further appears that during the life time of Smt. Phooli Devi, the properties belonging to her were partitioned amongst all her sons, and as per the will dated 05.03.1987 executed by her, the suit shop had fallen into the share of the original-plaintiff Mahesh Chandra. The plaintiff Mahesh Chandra thereafter filed the suit against the defendant Sarwar Hussain seeking eviction on various grounds, more particularly on the ground that he required the suit shop bonafidely for his wife and on the ground that the defendant was not using the suit shop for more than 6 months prior to filing of the suit. It was also alleged that the defendant had made material alteration in the suit shop without permission of the plaintiff. It was also alleged that the defendant had not paid rent since Jaunary 1993 and had committed default for more than 6 months.
(3.) The suit was resisted by the defendant-Sarwar Hussain by filing the written statement, denying the allegations made in the plaint, and further contending interalia that the suit was barred by principles of resjudicata, as the earlier suit was filed by Satyadev i.e. father of the plaintiff on the ground of bonafide and reasonable requirement, and the said suit was ultimately dismissed by the High Court. It was also contended that he was running his business in the suit shop for more than 35 years, and he did not have any other shop for his business. He also denied the allegations of having made material alterations in the shop, and having committed default in making payment of rent.;