Back
1989 Supreme(Raj) 275
Rajasthan High Court
Milap Chandra, J.
Amna Bai - Appellant
Versus
Mahaveer Singh - Respondents
S.B. Civil Second Appeal No. 103 of 1988
Decided On : July 27, 1989
A.S. Mehta & O.P. Mehta, for Appellant; D.S. Shishodia & S. Shreemali, for Respondent
Headnote:(a) Rajasthan Premises (Control of Rent and Eviction) Act, 1950—Sec. 3(iii)— Landlord.—It is well settled law that a co-owner can well file a suit for recovery of arrears and ejectment against his tenant. (Para 5)(b) C.P.C.—Sec. 100—Second Appeal—Neither been mentioned so in the memorandum of appeal nor shown during the arguments as to how the findings are perverse—Both the lower courts have concurrently held—These are findings of fact and they cannot be challenged in the second appeal. (Para 6)(c) C.P.C—Order 26 Rule 9—Rajasthan Subordinate Courts General Rules (Civil), 1986—Rule 67—Commission to make local investigation—Admitted case of the parties in the pleadings—No averment has been made in the written statement—Application by defendant for local inspection—Application rightly dismissed by the appellate court—Rules clearly provides about the matters to be referred to the commissioner. (Para 9)(d) C.P.C.—Order 41 Rule 27—Additional evidence in appeal—Subsequent event—Other two shops fell vacant during the pendency of appeal—Plaintiff could very well shift in it—The vacancy of the said two shops has nothings to do with any of the (plaintiffs) purpose—It is not the case that a new office is to be opened. (Para 7)(e) Rajasthan Premises (Control of Rant and Eviction) Act, 1950—Sec. 14(2) —Comparative hardship—Both the lower courts have held that other shops were available to the defendant on rent—Well proved that alternative accommodation was available—Would not suffer hardship. (Para 10)(f) Rent and Eviction Trial—The learned defendant-appellant could not show any provision in the (Rajasthan) Act which required the plaintiff to offer one of the shops to the defendant which fell vacant during the pendency of the appeal. (Para 10) Appeal dismissed with costs.
2. On December 20, 1979, the plaintiff respondent filed a suit for the recovery of arrears of rent & mesne profits and ejectment of the defendant-apell-ant with the allegations, in short, as follows. After practising for fifteen years in the High Court as an Advocate, he joined the University of Jodhpur in August, 1963 as a Professor. On the request of the defendant, the front portion of his office (verandah) was let out to her on monthly rent of Rs. 50/- w.e.f. June 1, 1974 with a clear understanding that it would be vacated as soon as it was required. His son Shri Vijay Singh Gehlot has passed LL.B. in the year, 1979, he has been enrolled as an Advocate and has started his practice. Accommodation for the office is urgently and genuinely needed. In the rear portion of the office, his daughter-in-law Smt. Bhagwati, M A. has fitted her knitting machine after taking loan from the Bank. The dimensions of the existing office are 10 x 16 only. It has only one door through the lane, it also does not have any window of ventilator for light & air. It is inadequate and insufficient for the purpose of an office of an Advocate. The plaintiff will also resume his practice after his retirement from the University in February, 1980. The defendant carries on the business of selling small pieces of cloth on a petty scale in the demised premises. Her husband is in the service of the Railway and three sons have good earnings. She is not vacating the demised premises with an ulterior motive despite service of the notice.
3. The defendant admits in her written statement that she is in possession & occupation of the demised premises on monthly rent of Rs. 50/- as a tenant of the plaintiff, plaintiffs son Sri Vijay Singh Gehlot has started law practice and the plaintiffs daughter-in-law Smt. Bhagwati Devi carries on knitting business. The remaining allegations of the plaint have been denied. It has also been averred that the demised premises are not required by the plaintiff, he would not suffer any hardship if the suit is not decreed and. on the contrary, she would suffer a great hardship if the suit is decreed. After framing necessary issues & recording the evidence of the parties, the learned trial court held that the demised premises is reasonably and bonafide required by the plaintiff, he would suffer great hardship if the suit is not decreed and the defendant would not suffer any hardship, if the suit is decreed. It has also held that the demised premises cannot be divided as its dimensions are 6 x 10 only and as such partial eviction is not possible. Appeal No. 17/84 was filed in the Court of the District Judge, Jodhpur by the defendant and it was heard and decided by the learned Additional District Judge No. 2, Jodhpur by his judgment under appeal.
4. On the request of the learned counsel for the parties, arguments were heard for the final disposal of the appeal at the admission stage vide order-sheet dated March 28, 1989.
5. It has been contended by the learned counsel for the defendant-appellant that the rent note (Ex. 1) was executed by the defendant-appellant in favour of the plaintiff and his two sons Shri Vijay Singh and Shri Ashok Kumar, the notice of ejectment (Ex 3) was given by the plaintiff alone, the suit has also been filed by the plaintiff Dr. Mahaveer Singh alone and as such the suit as not maintainable as the two co-owners are not parties in the notice (Ex. 3) and also in the plaint. He relied upon 1982 R.C.J. 752 (Rajasthan). There is no force in this contention. It has specifically been averred in para No.6 of the plaint that the
