- (1.) THIS second appeal has been filed against the judgment and decree dated 29.7.2009 passed by the Additional District Judge (Fast Track) No.2, Ajmer in Civil Appeal No.44/2006 whereby the judgment and decree dated 3.3.2006 passed by the Additional Civil Judge (Junior Division) and Judicial Magistrate No.3, Ajmer in Civil Suit No.318/1998 has been up-held.
(2.) BRIEFLY stated, the facts for the disposal of the present second appeal are that the plaintiff respondent filed a suit for eviction against the appellant alleging therein that the property described in paragraph 1 of the plaint was let out to the appellant by the husband of the plaintiff. The defendant-appellant attorned the tenancy in favour of the plaintiff and the rent was paid up to 30.6.1995 and thus default was committed. It was also alleged that the plaintiff is in bonafide of the suit premises for the purpose of business of jwellery. The suit was filed in the year 1996. The defendant appellant denied the averments made in the plaint and submitted that the plaintiff was not in the need of the suit premises and also there was no default committed by them. The trial court framed necessary issues. The trial court decided issue no.2 in relation to default in favour of the plaintiff and the defence of the appellant against eviction was also struck off. The trial court also decided issue in relation to reasonable bonafide necessity, comparative hardship and partial eviction in favour of plaintiff and decreed the suit vide its judgment and decree dated 3.3.2006. The defendant having felt aggrieved, preferred an appeal but without any success. Hence, the present second appeal has been filed. Heard learned counsel for both sides. Learned counsel for the appellant after arguing the matter at some length could not point out any substantial question of law involved in this case in view of the fact that defence was struck off and the plaintiff's evidence was sufficient to hold that the plaintiff was in the need of the suit premises. The learned counsel for the appellant only submitted that a reasonable time be allowed to vacate the suit premises. Learned counsel for the respondent submitted that a reasonable time be given to the appellant to vacate and to hand over vacant possession of the suit premises. I have considered the above submission made before me. In view of the submission made before me, it is not necessary to discuss the findings recorded on issues in detail. It is suffice to say that the defence of the defendant appellant was struck off and on the basis of evidence produced by the plaintiff, the trial court found that the plaintiff was in dire need of the suit premises and comparative hardship would be suffered more as compared to defendant appellant. The appeal preferred was partly allowed in relation to issue nos. 1 and 2 which were in relation to default and for the purpose for which the shop was given on rent and all other issues having been decided in favour of the plaintiff. Thus, it appears that the finding of facts, personal need and comparative hardship having been decided by two courts in favour of the plaintiff, they are concurrent in nature, therefore, the same are not required to be interferred with in the second appeal as on this legal issue the position of law is almost settled and has also not been disputed. The appeal, therefore, is liable to be dismissed. In the result, this second appeal is dismissed with the following directions: (i) The appellant shall vacate the rented premises latest by 31st October, 2010. (ii) The appellant shall also furnish an undertaking to the above effect to the satisfaction of the learned appellate court that he shall vacate the premises latest by 31st October, 2010 and during this period he shall regularly pay the rent/mesne profits for the use of the premises at the same rate which was being paid by him during the course of trial and appeal. (iii)The appellant shall also pay/deposit arrears of rent if due in the bank account of the respondent or in the trial court within a period of two months from today. (iv) The appellant shall not create any third party right in the disputed premises and shall hand over vacant possession of the disputed premises to the plaintiff respondent on or before 31st October, 2010.
(3.) IN case the appellant fails to deposit or pay mesne profits consecutively for two months or violates above conditions, then the plaintiff-respondent shall be at liberty to get the decree executed without reference to the court.;