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1992 Supreme(Raj) 418

Rajasthan High Court
Honble Milap Chandra Jain, J.
Jaharuddin - Appellant
Versus
Mohammed Lukaman - Respondents
S.B. Civil Second Appeal No. 145 of 1992
Decided On : December 09, 1992

Advocates Appeared:
R.K. Thanvi, for Appellant

Headnote:(a) Rajasthan Premises (Control of Rent & Eviction) Act, 1950, Sec. 13 (1)—Eviction on reasonable and bonafide necessity— Suit for ejectment may be decreed if the suit premises are required reasonably and bonafide by the landlord for the use or occupation of himself or his family—Son is a member of family — Non appearance of son in the witness box does not draw an adverse inference. (Para 5)(b) C.P.C., Order 6 Rule 5 and 15—Reply containing further and better particulars furnished in compliance with the order passed under Order 6 Rule 5 did not require verification under Order 6 Rule 15. (Para 4)(c) Rajasthan Premises (Control of Rent & Eviction) Act, 1950, Sec. 13(1)—Decree of ejectment an the ground of reasonable & bonafide necessity—Two years time given to vacate the premises. (Para 7)

       

MILAP CHANDRA JAIN, J.—This second appeal has been filed by the defendant against the judgment of the learned Additional District Judge No 2, Jodhpur dated November 18, 1992 by which he has dismissed the appeal tiled against the judgment dated March 10, 1992 of the learned Munsiti, Jodhpur City, decreeing the suit against him for his ejectment.

2. The plaintiff respondent filed a suit for ejectment against the defendant on the ground of reasonable and bona fide necessity of the suit shop for the business of his son Mohammed Sadique. After framing necessary issues and recording the evidence of the parties, the learned Munsiff, Jodhpur City decreed the suit and the appeal filed against it by the defendant-appellant was dismissed as said above.

3. It has been contended by the learned counsel for the defendat appellant that the nature of the business which is to be started by the plaintiffs son Mohammed Sadique in the suit shop was not pleaded in the plaint and this fact alone is sufficient to show that the need set up is not genuine and reasonable. He further contended that the reply to the application moved under Order VI Rule 5, C. P. C. for further and better particulars on this point was not verified as required under Order VI Rule 15, C. P. C. and as such the learned lower Courts seriously erred to take it into consideration.

4. There is no force in these contentions. On the application of the defendant-appellant moved under Order VI Rule 5, C. P. C. the plaintiff respondent admittedly disclosed that the suit shop is required for his son for starting his business of electric goods, T. V., V. C. R. etc. Order VI Rule 15, C. P. C. requires verification of pleadings only. According to Order VI Rule 1, CPC, pleading means plaint or written statement As such the reply containing further and better particulars furnished in compliance with the order passed under Order VI Rule 5, CPC. did not require verification under order VI Rule 15, C. P. C. Rule 34, General Rules (Civil), 1986 is also not applicable to such a reply. It may also be mentioned here that the reply containing further and better particulars was duly supported by an affidavit of the plaintiff-respondent. The learned lower Courts did not commit any error or illegality in taking into consideration the said reply. Admittedly, in the reply, it is specifically disclosed that the suit shop is required by Mohammed Sadique for starting business of electric goods, T. V., V. C. R. etc.

5. It was next contended by the learned counsel for the defendant-appellant that the learned lower Courts seriously erred to hold that the plaintiffs need for the suit shop for his son Mohammed Sadique is reasonable and bona fide in the absence of the statement of Mohammed Sadique himself and an adverse inference should have been drawn by them on account of his non-appearance in the witness box as he was the most material witness. He relied upon Nanalal Govardhan Lal Vs. Smt. Samrath Bai, (1). There is also no force in this contention. It is not in dispute that Mohammed Sadique is the son and a member of the plaintiffs family. Section 13(1) (h), Rajasthan Premises (Control of Rent & Eviction) Act, 1950 requires that a suit for ejectment may be decreed if the suit premises are require reasonably and bonafide by the landlord for the use or occupation of himself or his family. It would be too much to say that the reasonable and bona fide necessity could be proved by the production of Mohammed Sadique only. Evidence Act does not require that a fact can be proved by a particular witness. Moreover, it has been held in Moda Munchi Ramappa Vs. Mulha Umru Bhabppa, (2) that sufficiency or adequacy of evi-dence to support a finding of fact cannot be a ground for interference in second appeal. In Nana Lal Govardhan Lal Vs. Smt. Samrath Bai, (supra) the plaintiff himself did not appear in the witness box. Such is not the case here. The plaintiff Mohammed Lukman has appeared as P. W. 1.

6. It was next contended by




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