1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Gokul Chand. vs. Smt. Bhagwati Devi and another. S.B.CIVIL SECOND APPEAL NO.445/2005 UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 30.8.2005 PASSED BY SHRI KAILASH CHANDRA SHARMA, ADDITIONAL DISTRICT JUDGE NO.1, BIKANER IN CIVIL APPEAL DECREE NO.37/1997. DATE OF JUDGMENT ::: 24.4.2007 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. Sajjan Singh, for the appellant. Mr. M Shishodia, for the respondents. - - - - - BY THE COURT: Heard learned counsel for the parties. The plaintiff no.1/landlady filed the suit for eviction of the tenant from the suit premises i.e. shop 2 on the ground of personal bonafide necessity of her husband, plaintiff no.2 who retired about 3 years ago from service from the date of the filing of the suit. The trial court as well as the appellate court both concurrently held the need of the plaintiff for suit shop for her husband's business is bonafide. Learned counsel for the appellant/tenant submitted that now the husband of plaintiff landlady is 81 years old and he in another litigation admitted that he is not physical fit and, therefore, according to learned counsel for the appellant, the plaintiff's husband now cannot do business in the suit shop. Learned counsel for the appellant submitted that he filed application under Order 6 Rule 7 CPC before the first appellate court for taking on record the subsequent event on record. The subsequent event was that during pendency of the appeal, the landlady got possession of one shop from her tenant which is just four shops away from the shop in dispute. The said application was dismissed against which revision was preferred by the appellant before this Court. That revision petition was dismissed by this Court with observation that the appellant can move application under Order 7 Rule 7 CPC for taking on record the subsequent events. The tenant/appellant thereafter submitted application under Order 7 Rule 7 CPC and 3 contended that one of the tenant of the plaintiff no.1 vacated the shop and, therefore, the plaintiff no.1 can start her husband's business in that shop. According to learned counsel for the appellant, that fact has not been considered by the first appellate court. I considered the submissions of learned counsel for the appellant and perused the two judgments of the courts below. In para no.20 of the judgment, the first appellate court clearly mentioned the arguments raised by the appellant which according to appellant came into existence after the decision of the trial court. The first appellate court observed that the tenant cannot direct the landlord to occupy a particular shop. Therefore, the argument was considered and even if there is an error of fact or error of law not affecting the merits of the case, then in second appeal, there cannot be any interference. The appellant's contention that the person for whose need the suit is filed is now 81 years old is no ground for reversal of the decree because of the reason that the appellant/tenant cannot claim any benefit because of the delay caused in the court proceedings. At this juncture, it will be proper to recapitulate 4 that the suit was filed in the year 1989 and the plea is taken by the defendant only because the delay was caused in the court proceedings. In view of the above, I do not find any substantial question of law involved in this appeal and this second appeal deserves to be dismissed. At this juncture, learned counsel for the appellant prayed that sufficient time may be given to the appellant to vacate the suit premises. Learned counsel for the respondents has serious objection to the grant of time to the appellant. I considered this prayer of learned counsel for the appellant and looking to the facts of the case, this Court is of the view that the appellant be granted time upto 30.4.2008 to vacate the suit premises. Therefore, it is ordered that in case, the appellant furnishes a written undertaking before the trial court within a period of two months from today that he shall hand over the vacant possession to the landlord by or before 30.4.2008 and shall not part with the possession or sublet the suit premises during this period and shall pay all the arrears of rent and decreetal amount, if due, and shall also pay the rent 5 upto 30.4.2008 in advance within a period of two months from today before the trial court or directly to the landlord, the decree under challenge shall not be executed till 1.5.2008. In case of non-compliance of the order or default in payment of amount mentioned above, the decree shall become executable forthwith. With the aforesaid concession, this appeal is dismissed. (PRAKASH TATIA), J. S.Phophaliya