Honble GUPTA, J.–The defendant has filed second appeal in a suit for eviction filed on the ground of reasonable and bonafide necessity, default in payment of rent and subletting/parting with possession of part of the rented premises.

(2). The learned trial Court found the question of default in favour of the plaintiff and giving benefit of Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII 1950), hereafter to be referred to as `the Act, the suit was not decreed on that count. Regarding the other two grounds, being reasonable and bonafide necessity, being covered by issues No. 5, and 11, and subletting/parting with possession being covered by issue No. 4, were decided against the plaintiff, and thus, the suit was dismissed vide judgment and decree dated 6.3.79. In appeal, learned District Judge, vide impugned judgment reversed the finding of the learned trial Court on issue No. 4, and held, that the defendant has allowed Tulsi Das to sit on the Chabutari, where Tulsi Das sells his merchandise by keeping a Peti. Thus, it is established that the defendant has sublet the disputed Chabutari to Tulsi Das, and has parted with possession. It was also found, that the mere fact that Tulsi Das has subsequently been removed, hardly makes any difference. Regarding bonafide necessity, the learned Lower Appellate Court found it to be not established; and regarding comparative hardship, it was found to be more in favour of the tenant. Thus, the finding of the learned trial Court on issues No. 5 and 11 were maintained. Consequently, in view of the finding on issue No. 4, the suit of the plaintiff for eviction was decreed.

(3). This appeal was filed on 12.11.81, and vide order dated 13.11.81, the appeal was admitted, by framing the substantial question, being, as to whether on facts and in the circumstances of the case, the learned Additional District Judge was not right in decreeing the plaintiffs suit for ejectment on the ground of subletting or parting with the possession under Section 13(1)(e) of the act.

(4). During pendency of the appeal, the plaintiff Banshi Lal expired on 12.7.86, and his legal representatives were ordered to be substituted vide order dated 8.12.87. Thereafter, the other proforma respondent, being Sukh Lal, also expired, and an application was filed for substitution of his legal representatives. The matter was going on in the service of legal representatives of respondent No. 1, the proforma respondent. However, in the meanwhile, the appellant Mishrimal also expired on 2.12.2004, and thereupon, an application was filed alleging that the appellant has left behind him four sons and one daughter, and that, he executed a will dated 1.2.86, in favour of his grandson, Nihal Chand S/o Lal Chand Parakh, in respect of the suit shop, and consequently, it was contended that Nihal Chand alone represents the estate of the deceased-appellant, and right to continue the appeal survives upon him alone. A Photostat copy of the Will was also enclosed, and it was prayed that Nihal Chand be substituted in place of deceased Mishrimal. On this application, vide order dated 17.3.2005, notice was ordered to be issued to the respondent, and also to the natural heirs of the deceased-appellant, on the details being provided by the appellant. In this process, on 27.4.2006, the Court felt concerned, in view of the fact, that appeal is as old as of the year 1981, and noticed, that the service on the legal representatives of respondent No. 1 is not being effected despite several attempts, during last more than 11 years, and therefore, the summons were ordered to be published in the local newspaper. Likewise, regarding natural heirs of the appellant also, it was directed, that the summons be got served by publication in local newspaper having circulation in Jodhpur, and somehow, as the things happened, at this time, nothing was noticed about the service or non-service of legal representatives of respondent No. 2, the plai

Click Here to Read the rest of this document