PARIHAR, J. - (1.) SUIT for eviction of commercial premises was filed by plaintiff-respondent Chauthmal (since deceased and now represented by his legal heirs) on the ground of bonafide necessity, default and nuisance. During the pendency of the suit, the above plaintiff-Chauthmal stood retired from Government service on reaching the age of superannuation. As such, amendment was sought in the plaint seeking eviction also on the ground of his own personal necessity after retirement. The issues were also framed accordingly. The evidence was led and the suit was decreed on the ground of bonafide necessity by the trial Court vide judgment and decree dated 2. 12. 2002. The above judgment and decree passed by the trial Court came to be challenged before the lower appellate Court. During the pendency of the appeal, the plaintiff-Chauthmal also died. However, the judgment and decree passed by the trial Court was affirmed by the lower appellate Court vide judgment and decree dated 31. 8. 2007. Hence the present second appeal.
(2.) LEARNED counsel for the appellant submitted that during the pendency of the appeal, since the plaintiff-Chauthmal had died, as such, the ground of bonafide necessity as raised by deceased Chauthmal did not survive. It has further been submitted that no amendment was sought on behalf of the plaintiffs-respondents to show the bonafide necessity of widow or even her sons and the appellant was denied opportunity of countering the evidence so could have been submitted on behalf of the plaintiffs-respondents on this ground. After hearing counsel for the parties, I have carefully gone through the material on record. The facts as stated above are not disputed. The decree was passed by the trial Court on the ground of bonafide necessity of deceased Chauthmal, who had retired from Government service and wanted to do his own business in the suit premises. It was only during the pendency of the appeal that the plaintiff-Chauthmal died. However, the requirement of the premises by his legal heirs mainly the widow will not extinguish on his death. The plea of learned counsel for the appellant that widow is getting pension and her sons are also in employment cannot be accepted so as to deny possession sought on the ground of starting business after retirement by the deceased plaintiff. Even the widow had her own independent right of survival and earn her livelihood after death of her husband. The age of the widow cannot be held to be a disqualification in such matters. As has also come on record that one of the sons of the deceased Chauthmal had also sought voluntary retirement prior to death of his father. He can also against his mother in making proper earning from the suit premises. The issue of comparative hardship has also duly been considered by both the courts below. Since after due consideration proper discretion has already been used by both the courts below, in the facts and circumstances, no further interference is called for by this Court, moreso, when no substantial question of law arises. The suit was filed in the year 1993. The decree was passed on 2. 12. 2002. In view of concurrent findings of fact, though no interference is required, however, in the interest of justice, the defendant-appellant may now vacate the suit premises on or before 1. 9. 2008. However, he will continue to make the payment of rent till vacation of the suit premises. An undertaking in this regard be submitted by the defendant-appellant before the trial Court within fifteen days. In case of default of any of the conditions of the undertaking, the plaintiffs-respondents shall be free to execute the decree passed by the Courts below in accordance with law. With the above directions, the appeal is disposed of accordingly. . ;