Satya Brata Sanyal, J.

This second appeal is at the instance of the defendant respondent which arises out of a suit for eviction under the Bihar Building (Lease, Rent and Eviction) Control Act.

2. The plaintiff instituted a suit on 3.10.1977 (or eviction of the tenant from a shop where the defendant carries on retail sale of medicines on the ground of default in the payment of rent from January 1975 to September, 1977. Rent payable was at the rate of Rs.40/-per month by the last day of month next following when it falls due, on 24.3.1981 the plaint was amended adding a further ground for eviction i.e. personal necessity. It has been averred in paragraphs (4a), (4b) and (4e) of the plaint that his two sons have engaged themselves in various business and they have no independent premises where from they can operate. They do blacksmithy and undertake repair work of tempos and the premises in question is required for storing valuable tool for effectively carrying on their trade and business. The defendant, on the other hand stated that after December 1974 the plaintiff stopped realising rent for several months and in the month of March 1977 he paid a sum of Rs. 2.000/- towards the arrears of rent. He has challenged the service of notice under section 106 of the Transfer or Property Act. In the additional written statement it was averred by the defendant:

"The suit premise in a small shop room in which the defendant is carrying on the business of retail medicine and in that shop neither the business of blacksmithy nor the boring or tubewell nor the business of Tempo repairing can be done.

3. At the time of admission of the appeal the substantial nations of law framed were-whether the lower appellate court ought to have permitted the parties to examine an expert having observed the necessity of experts evidence to prove the genuineness of Ext. A. the receipt, and ought not to have decided the question without the aid of such evidence and the other question was “whether the finding on the question of personal necessity is illegal and not binding on the appellant".

4. The court of appeal below found that the story of payment of sum of Rs. 2000/- by the tenant to the landlord on 13.3.1977 is absolutely false and the tenant is liable to be evicted from the suit premises on account of non-payment of rent by reversing the finding of the trial court that the said sum at Rs. 2000/- was actually paid. It has further found that the requirement pleaded as to personal necessity has been proved and the said requirement is bona fide for the use and occupation of the plaintiff's two sons for their own business.

5. Mr. S.C. Ghose appearing for the appellant strongly assailed the findings of lower appellate court that a sum of Rs.2000/- was not paid. He submitted that the court of appeal below having itself criticised the trial court's role comparing the signature of the landlord on the receipt in (Ext. A) and his admitted signature usurped the ex pert's role itself when it observed:

“I have myself compared the disputed and admitted signatures and I am of the opinion that the signature appearing on Ext. A differs in many respects from the admitted signature of Kishun Mistri appearing on the deposition."

Learned counsel relying on the decision in Kesarbai v. Jethabhai Jivan argued that opportunity ought to have been furnished to the defendant to examine an expert for determination of the genuineness of the signature. He further questioned the finding of non-payment on the basis of other evidence referred to by the lower appellate court. Learned counsel also contended by reference to section 12 of the Act, that if the said payment of Rs. 2000/- is admitted then on the date the suit was instituted there were “no dues" payable by the tenant nor rent was in arrears. Therefore, the order of eviction on this score is against the provisions of law.

6. On the question of personal necessity, he submitted that this was brought about by amendment of the plaint a