Honble YAMIN, J–Heard in details, the facts of the case are that Smt. Hari Bai filed a suit for eviction against defendants appellants on the grounds of default in payment of rent, personal & bonafide necessity, nuisance etc.

(2). The case of the defendants was that they were not the tenants of the plaintiff instead the shop was taken on rent from Chandra Singh and the rent was paid to Chandra Singh in whose favour rent deed was executed. It was further aver- red that the plaintiff did not require the property for her bonafide use. It was also pleaded that a cheque of Rs. 750/- was given by the defendants to the plaintiff which related to electrical expenses and the suit may be dismissed. The trial Court framed relevant issues. Both the parties led evidence and the trial Court gave finding that the relationship of landlord and tenants existed between the parties and the plain- tiff required the property for her bonafide and personal use. It was also found that the defendant had committed default. Consequently, decree for eviction was passed by the trial Court on 27.5.98.

(3). The defendants preferred an appeal which was dismissed by the learned Additional District Judge No.3, Jodhpur on 18.9.98. From the judgment of the lear- ned appellate Judge it is found that only point of relationship of landlord and tenant was raised and the point about the rate of rent as well as point of default were raised. Point about reasonable and bonafide necessity were also argued and all these points were decided in favour of the plaintiff respondent on the basis of evidence and the learned appellate Judge concurred with the finding of the learned trial Judge. They related to issues No.1,2,3,4,5,6, and 8. In para No. 17 of the judgment the learned appellate Judge observed that for rest of the issues no argument was advanced by the learned counsel for the defendants appellants.

(4). Learned counsel for the appellants submitted an affidavit before this Court on 26.11.98 to the effect that he argued all the points. But this affidavit has been co- ntroverted by the affidavit of the learned counsel for the respondent by submitting his own affidavit that he was present at the time of arguments and Shri Ajay Kumar Acharya, counsel for the appellants, has submitted a false affidavit to the effect that he had argued all the issues. This affidavit of the learned counsel for the respondent finds support from para No.17 of the judgment of the learned appellate Judge wh- erein he has mentioned that the counsel for the appellants had not addressed the Court in relation to other issues. Therefore, when there is oath against oath the settled law is that the party on whom burden lies fails. The affidavit of the learned counsel for the respondent finds support from the observations of the learned appellate Judge in para No.17 of the judgment wherein he has stated that the cou- nsel for the appellants did not advance any argument on other issues except discussed by the learned appellate Judge. Therefore, I am not ready to accept that the learned counsel for the appellants had raised and addressed arguments on the points except those stated and decided by the learned appellate Judge.

(5). Learned counsel for the appellants submitted that the learned appellate Judge has not stated the points for determination in the judgment as required under O. 41 R. 31 CPC and the case should be remanded to the learned appellate Judge for re-writing the judgment. He has relied on Khetulal vs. Narsingh Das & Ors. (1).

(6). I have gone through the judgment of the appellate Judge. He has discussed the points raised before him. Learned counsel for the respondent cited Gi- rijanandini Devi and others vs. Bijendra Narain Choudhary (2), in which it was observed that when the appellate court agrees with the view of the trial court in evidence, it need not restate effect of evidence of reiterate reasons given by the trial Court. The expression of general agreement with reasons given by the Court

Click Here to Read the rest of this document