M.L.JAIN, J. - (1.) THE facts of this appeal are that the respondent Narsingh Das had a shop in Subhash Bazar, Tonk which was rented out to the appellant Udhyog Mandir, Khadi Bhandar, Tonk The landlord filed a suit for eviction on the ground that the premises were required for settling his grandson Kailash Nath into the business of selling medicines. The learned trial Court by its judgment dated 11th December, 1973, dismissed the suit holding that the premises were not required reasonably and bonafide and it was a mere edevice to secure an increase in the rent.
(2.) UPON appeal, the learned Additional District Judge, Tohk, fountl that the plaintiff had succeeded in establishing that he required the suit shop reasonably ,and bonafide for this grandson Kailash Nath to run a medical store. The judgment of the lower court was reversed and the suit of the plaintiff was decreed. It was also observed that the learned Counsel for the defendant respondent had conceded that he had failed to prove any oblique motive on the part of the plaintiff and prayed that the defendant be allowed one year 9 months time for vacating the shop. This appeal has been directed against the decree of the learned Additional District judge. Since the law was amended meanwhile, this Court framed an additional issue as follows: Whether having regard to all the facts and circumstances of the case including the question whether any other reasonable accommodation is available to the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it. The learned lower count was directed to record additional evidence on this issue and returned the evidence along with its finding. The learned lower court after (sic) the evidence returned the finding on 10th August, 1970, that no greats hardship will be caused to the appellants if a decree for eviction is passed. The learned Counsel for the respondent submitted in the first instance that the appellant had conceded the case of the, landlord before the learned Additional District Judge and had asked for time for vacating the premises. In these circumstances Section 115 of the Evidence Act is attracted and the appellant cannot be allowed to approbate and reprobate. Moreover, the High Court cannot change the findings of fact arrived at by the learned lower court. He relied upon Mattulal v. Radhalal AIR 1974 SC 1504 in which it is held that the High Court could not interfere in second appeal and set aside the finding of fact so long as there was some evidence to support and it could not be branded as arbitrary, unreasonable or perverse.
(3.) NOW , though the jurisdiction in second appeal is very limited but at the same time it does not appear to be correct to hold that simply because the defendant asked for more time to vacate the premises than allowed by Sub -section (9) of Section 13 of the Rajasthan Premises (Control of Rent and (Eviction) Act, 1950 hereinafter called 'the Act', it does not mean that he car not challenge the decree itself in second appeal. If is not a consent decree and it was only when the defendant's case did not prevail with the court that the counsel asked for time for vacation of the premises. He as not reprobating anything which he had approbated.;