TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE plaintiff-respondent filed a suit for eviction of his tenant/appellant on the ground of personal bona fide necessity with the plea that he purchased the suit property from his father and presently, he is living in one room accommodation in difficult situation. THE trial Court decreed the suit of the plaintiff on 20. 8. 1996 after recording finding that the plaintiff proved his personal bona fide necessity. THE defendant/appellant preferred appeal against the judgment and decree dated 20. 8. 1996. Before the appellate Court, an argument was raised by the tenant/appellant that just before the decision of the suit by the trial Court, the plaintiff's father expired on 16. 8. 1996 thereby the plaintiff got his father's house in inheritance, therefore, the need of the plaintiff has come to an end if it was there. THE said argument was considered by the first appellate court and the first appellate court after considering the said plea of the appellant, dismissed the appeal of the appellant/defendant vide judgment and decree dated 29. 10. 2001. Hence, this second appeal. According to learned counsel for the appellant, the first appellate court committed serious error of law in ignoring subsequent events which had material bearing on the decision of the appeal as well as of the suit. It is also submitted that today also, the respondent cannot dispute about the date of death of his father. Learned counsel for the appellant vehemently submitted that the first appellate court's judgment and decree are perverse merely because of the fact that the first appellate court dismissed the appeal after observing that the appellant did not prove the fact of death of the plaintiff's father Sardar Mal, who died after final arguments on the suit and just a few days before the pronouncement of the judgment of the trial court, therefore, the appellant could not have proved the fact in trial court and could have raised the plea in appeal only. Learned counsel for the appellant also submits that the plaintiff failed to prove his need in any manner. Learned counsel for the appellant also submitted that the facts brought on record by the appellant by moving application under Order 7 Rule 7, CPC and Order 6 Rule 17, CPC requires factual investigation if the facts stated in the application are not accepted as true. It is also submitted that in view of the subsequent event, the issue of comparative hardship has affected substantially in favour of the appellant. It is also pointed out by the learned counsel for the appellant that the Court below failed to frame an issue about comparative hardship and that caused prejudice to the appellant's case.
(3.) IN reply to the appellant's application under Order 7 Rule 7 CPC and Order 6 Rule 17 CPC for amending the written statement and for taking on record the subsequent event, it was stated by the plaintiff that his father though died but before his death, he executed a Will in the year 1993, copy of which is placed on record. The will is duly attested by Notary Public and it is clear from the Will that the plaintiff's father since sold part of the property including the shop in dispute to the plaintiff, therefore, gave a small open plot to the plaintiff measuring 250 square feet (11-3/4 feet x 22-1/4 feet. It is also stated that the plaintiff was not the only heir but he has two more brothers, one sister and mother. Therefore, in these circumstances, the plaintiff's need has not come to an end. Learned counsel for the respondent submitted that the defendant got full opportunity to contest the suit and he led the evidence knowing it well that he is facing a suit for eviction. Therefore, in case my issue was not framed, such a question became irrelevant looking to the facts of the case because the plaintiff proved his need rather dire necessity. I have considered the submissions of the learned counsel for the parties and perused the reasons given by the two Courts below. ;