KAN SINGH, J.—The eviction of the defendant-appellant from the suit premises was sought on the ground of his having built a suitable residence in Adarsh Nagar, Jaipur. The issue that was tried was whether the defendant had constructed his own house in Adarsh Nagar and started living in the same and that the house was suitable for his residence. Both the parties produced their evidence. The learned Munsif held that the newly constructed house by the defendant was not suitable. The lower appellate court came to a contrary conclusion. He observed that the newly constructed house consisted of 6 rooms, one garage, kitchen, store room, latrine, bath room and a Chowk. He further found that the defendant-tenant had started living in this house from 23-1-67 on which date the house warming ceremony was performed. Ex. 1 was the invitation card for this ceremony and Ex. 2 and Ex. 3 were the photos of the house. Further the marriage of defendants son Munish was also performed in this house and the invitation card for the marriage, Ex. 4, as also for the "At Home" were also exhibited. The learned Add. Distt. Judge, Tonk, who heard, the appeal, therefore, came to the conclusion that the newly constructed house of the defendant was suitable for his residence. It was argued before him on behalf of the defendant-tenant that he was keeping his Dental and Opticians Clinic on the lower portion of the suit premises and as the house built by him was at a distance of two miles from the suit premises, it was not suitable for him for carrying on his profession as a Dentist or as Optician. This was repelled by the learned Additional District Judge observing that the defendant was having his transport (Motor Cycle) and could, therefore, cover the two miles distance in no time.

2. Learned counsel for the tenant has argued that on the date the defendant occupied the house it was incomplete and he had only shifted to the house temporarily for the purposes of the marriage of his son. Apart from this it was submitted that the defendant had sold away the house during the pendency of the suit on account of his indebtedness. Learned counsel stressed that the suit has to be decided by the Court in the light of the facts as they existed on the date of decree. In other words, subsequent events have to be taken due note of inasmuch as sec. 18 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 prohibited the Court from passing any decree for eviction unless it was satisfied that the tenant has built a suitable residence. In the present case, according to learned counsel, as the defendant was constrained to alienate the property to clear his debts he was yet entitled to the protection of the Act. Learned counsel placed reliance on a number of cases, such as, Smt. Ashrafi Devi vs. Choudhri Mukh Ram Saini (1971 R.C.J. 691), S. B. K. Oil Mill vs. Subhash Chandra (AIR 1961 SC 1596), Kathringa vs. Lonappan (1969 Kerala Law Times 384) and Narayan Chand vs. Krishna Kumar (1967 RLW 312).

3. So far as the question of the defendant having built a house in Adarsh Nagar is concerned the position is admitted. It is, however, submitted that the house was incomplete and was otherwise not suitable for the defendant as he could not carry on his profession there. Whether the house was complete or suitable for the residence of the defendant is a question of fact. I am, therefore, not inclined to go behind the finding of the lower appellate court. Learned counsel for the appellant submitted that the court below has been guided by an extraneous consideration in that it observed that the defendant had not produced any licence for the carrying on of the profession of a dentist or an optician. This is true, nevertheless the Court had taken into consideration all the salient facts and has then reached the conclusion that the house was suitable for residence. It has referred to the various exhibits. The photographs of the house on record show that the house seems to be a good one

Click Here to Read the rest of this document