- (1.) The appellant herein has come up by way of this appeal wherein, he has assailed the judgment and decree dated 9-7-1998 of the learned District Judge, Karauli in Civil Regular Appeal No. 22/93 whereby, the said Appellate Court had affirmed the judgment and decree of eviction of the learned Additional Munsiff, Karauli in Civil Suit No. 45/87 passed against the defendant-appellant for his eviction from the suit premises on the grounds of default and bona fide necessity in a suit filed by the plaintiff-respondent.
(2.) This appeal has been heard and is being disposed of finally at admission stage at joint request of both the parties on the following substantial questions of law qua the rival contentions of the parties. (a) Whether it is open to the appellant to contend on the question of having not been given benefit of first default by the trial Court notwithstanding having already availed of the said benefit in earlier suit filed by the plaintiff-respondent where after determination of the rent made by the Court as per Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 for short "the Act of 1950" the appellant had deposited arrears of rent for a period of 23 months, which admittedly were deposited pursuant to the orders of the trial Court after giving him benefit of first default ? (b) Whether after having availed of the benefit of first default in earlier suit, since the only ground on which the eviction was sought by the plaintiff in the said suit related to the ground of default, is the appellant entitled to plead contrary to the findings arrived at by the trial Court in earlier suit, particularly when he has committed default for the second time in not having paid arrears of rent, which admittedly had fallen due from him for a period of 33 months to the plaintiff-landlord, who had been compelled to file second suit for eviction on the ground of default being wilful and deliberate (2nd default) as well as other grounds out of which only two grounds survived before the trial Court (i) 2nd default, (ii) bona fide necessity of the landlord ? (c) Whether it is open to the appellant to assail concurrent findings recorded by the Courts below, which admittedly held on due appreciation of the evidence that after having availed of the benefit of first default in earlier suit the appellant had again deliberately with some ulterior motive had committed default for the 2nd time thus making out a ground for his eviction from the suit premises ? (d) Whether it is open to the appellant to contest bona fide need of the landlord-plaintiff who admittedly has no other alternative accommodation available to him for running of his son's business relating to a Chemist's shop for his son who was unemployed whereas on proper appreciation of the evidence, the Courts below have recorded concurrent and positive finding to the effect that the appellant has got other 3-4 shops available to him in which he has been running business along with his wife and sons and as such, even on comparative hardship it has been found that the plaintiff would be put to greater hardship on account of non-availability of suitable alternative accommodation ?
(3.) The facts relevant for deciding the present appeal briefly stated are that before filing the second suit giving rise to the present appeal, earlier a suit was filed by the plaintiff on the sole ground of default, which was subsequently withdrawn by the respondents themselves in the year 1978. The present appeal has arisen out of second suit which was filed by the respondents on 11th November, 1980 for eviction and for arrears of rent on the grounds of (a) default, (b) material alteration, (c) subletting, and (d) bona fide necessity in respect of the suit property which is a shop premises on the following averments inter alia :- (i) the tenant has committed default in payment of monthly rent as well as arrears of rent till the institution of the second suit as per Section 13(1)(a) of the Act of 1950? (ii) the tenant has created material alteration in the suit premises by raising construction without obtaining prior permission of the plaintiff-respondent as per Section 13(1)(c) of the Act of 1950. (iii) the tenant has sublet or parted with the possession of the suit premises as per Section 13(1)(e) of the Act of 1950. (iv) the suit premises is required reasonably and bona fide by the landlord as per Section 13(1)(h) for use or occupation by himself and members of his family more particularly in view of his growing family requirements as well as for the establishment of a Chemist's shop by his son.;