TATIA, J. - (1.) THE Trial Court decreed the suit of the appellant-plaintiff for eviction of his tenant-respondent, from the suit premises, vide judgment and decree dated 16. 8. 1994. THE appellate court reversed the judgment and the decree of the Trial Court vide judgment and decree dated 5. 4. 1997. Hence, this second appeal by the appellant-plaintiff-landlord against the judgment and decree of the first appellate court dated 5. 4. 1997.
(2.) BRIEF facts of the case are that the plaintiff-appellant, who was in service in the year 1974, let out one of his shop, out of his three shops, situated in his house to the defendant- deceased Kanhaiya Lal on 2. 10. 1974 on rent of Rs. 110/- per month excluding the charges for the electricity, water and house-tax. The plaintiff filed the suit for eviction against the defendant- tenant on 28. 10. 1977. The plaintiff in his plaint stated that the suit shop was let out to the defendant for commercial purposes but instead of doing the business in his own name, the defendant obtained licence from competent authority for running the shop in the name of his wife and started business in the shop in the name of his wife without the permission of the plaintiff. Not only this but in violation to the terms and conditions of the tenancy agreement, the defendant-tenant started residing in the shop from 1. 6. 1976 with his wife and children. The defendant also damaged the property causing loss to the plaintiff. The plaintiff further submitted that plaintiff's son Chandra Shekhar is doing his business in the name of M/s Kamdhenu Aahar Industries in Shop No. 1 of the plaintiff and he wanted to have show-room for his business, therefore, the plaintiff is in need of the shop No. 3, which was let out to the defendant. The plaintiff also sought decree for eviction on the ground of default in payment of rent by the defendant as he did not pay the rent of more than six months. The written statement was filed by the defendant-deceased Kanhaiya Lal on 21. 3. 1978. In the written statement, the defendant submitted that the premises was taken by him on rent for his residence as well as for running business in the name of his wife and the suit premises was not taken on rent only for commercial purposes. The defendant, after denying the allegation of default, submitted that the plaintiff wanted to get more rent from the defendant and submitted that plaintiff's son Chandra Shekhar is not doing the business in the name of M/s Kamdhenu Aahar Industry and there is no office of his business in shop No. 1 and in fact, shop No. 1 is in possession of P. J. Viren & Sons, therefore, there is no need of the shop in dispute for expansion of the business of plaintiff's son. The defendant further submitted that since five years have not passed to the tenancy of the defendant, therefore, the plaintiff's suit before expiry of five years from the date of the start of tenancy of the defendant on ground of plaintiff's personal need is not maintainable. The plaintiff amended his suit with leave of the court on 21. 8. 1984 and took a plea that the plaintiff retired from his service on 30. 11. 1983 and the plaintiff wants to do the business with his son in the shop in dispute and the plaintiff has sufficient means for doing the business and, therefore, the plaintiff is seeking eviction of the defendant, now for his own need. Plaintiff further pleaded that he has no other suitable premises. The defendant submitted reply to the newly added grounds on 25. 11. 1984. In reply to newly added para (7a) of the plaint, the defendant admitted that the plaintiff retired on 30. 11. 1983 but denied that the plaintiff is unemployed and submitted that the plaintiff, after retirement, joined the Central Arid Zone Research Institution, Jodhpur and from there he is getting good salary. It is also submitted that the plaintiff is of the advance age and he has no physical ability to do the business. In this additional written statement dated 25. 11. 1984, the defendant submitted that shop No. 1 in which it was alleged that the plaintiff's son Chandra Shekhar is doing business, is in the tenancy of Radha Swami Typing Institute. The Trial Court framed issues on 15. 1. 1985 which are relating to the default in payment of the rent for the premises, what is the effect of defendant's doing business in the name of his wife instead of his own name, whether the plaintiff retired from service in the year 1983 and wants to do his business with his son and, therefore, there is personal bona fide need of the plaintiff, whether the defendant has already taken another shop in front of shop in dispute and because of this reason, defendant will suffer hardship in case decree for eviction is passed against the defendant.
(3.) THE plaintiff further amended his plaint with the leave of the court by order dated 24. 2. 1987 and added a new ground for seeking eviction. New ground is that the defendant removed the partition wall and materially altered the premises. THE amended plaint was filed by the plaintiff on 5. 3. 1987. THE defendant submitted reply to the grounds by filing supplementary written statement on 21. 8. 1987. The defendant submitted an application under Order 6 Rule 17 C. P. C. and sought amendment in the written statement to take additional grounds to contest the suit of the plaintiff which was allowed by the Trial Court on 17. 11. 1991 and amended written statement was filed by the defendant on 2. 1. 1992. The plaintiff filed the rejoinder to the amended written statement of the defendant on 3. 2. 1992. Yet, there is one more application seeking amendment of the written statement by the defendant which was also allowed by the Trial Court vide order dated 1. 3. 1992 and the defendant submitted amended written statement on 14. 4. 1992. ;