The main legal point established in the judgment is that the findings of fact based on the appreciation of evidence are within the province of the trial court and first appellate court, and re-appreciation of evidence to draw a different conclusion in a second appeal is impermissible.

JUDGMENT

1. Appellant-tenant has filed this second appeal assailing the judgment and decree dated 19.09.1997 passed in civil first appeal No.16/96 by the Court of Additional District Judge No.2, Jaipur City, Jaipur, affirming the judgment and decree for eviction dated 12.12.1995 passed in Civil Suit No.1324/89 by the Court of Additional Civil Judge (Junior Division) No.3, Jaipur City, Jaipur titled as Ram Kishore Dube & Ors Vs. Satish Chand Mangal.

2. The relevant facts as culled out from the record are that the appellant is tenant in shop in question since 16.06.1970 at the rate of Rs.50/- per month. The tenancy of appellant is not in dispute. Respondents instituted a civil suit for eviction invoking the provision of Section 13(1)(J) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred as 'the Act of 1950') on 03.01.1989. The provision of Section 3(1)(J) of the Act of 1950 envisages that if rented premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of suit, in that situation, the landlord is entitled to evict the tenant. Respondents specifically averred in the plaint that the appellant is not using the shop in question and the same is laying closed without any reasonable cause more than 5-7 years and specifically for six months continuously, just preceding to the date of filing of the suit. Appellant submitted his written statement and contended that he is using rented shop for the purpose of running a business of electric decoration in marriage functions and his articles are laying in the rented shop.

3. According to the rival pleadings of parties, contentious issues were framed and evidence was recorded. Both parties adduced their evidence.

4. The trial court, on appreciation of pleadings and evidence of both parties, after examining the statements of PW-1, PW-2 and PW-3 as also taking into account the statement of DW-1, concluded that plaintiff has prima facie proved that the rented shop was not being used for the purpose it was let out and the same is laying closed for continuous period of six months prior to filing of the suit. In that situation, the onus shifts on defendant to show that the shop was being used for running the business, however, it was observed that defendant has not produced any document either of electricity bills or bookings for the marriage programmes or to show any other evidence about using the rented shop or running the business of electric decoration therein. Even the defendant remained failed to produce any other independent witnesses to rebut the plaintiff's evidence. On consideration of such evidence, the trial court recorded fact findings that the shop is not being used for any business purpose and passed the decree for eviction on the ground enshrined under Section 13(1)(J) of the Act of 1950 vide judgment dated 12.12.1995. The judgment of trial court also reveals that the relevant case law on this issue was also considered more particularly the judgment of the High Court in case of Gauri Lal Vs. Gurjar mal [(1992) 1 RLR 75].

5. Appellant-tenant challenged the decree for eviction dated 12.12.1995 by filing the first appeal. The first appellate court re- heard the matter as a whole and on re-appreciation of evidence, concurred with the findings of the trial court and affirming the decree for eviction. The first appellate court has categorically observed that the plaintiff has prima facie proved by his evidence that the shop in question is laying closed continuously for a period of six months prior to filing of the suit but the defendant has not rebutted such evidence and has not able to produce any documentary evidence. The first appellate court also considered the issue raised by and on behalf of appellant-defendant that since the suit was not filed immediately on expiry of six months, the issue of non-user should be treated as waiver. Such issue was t