1 SBCivil Second Appeal No.95/2010 LRs of Badri Narain v. Bhopal Singh Date of Order :: 18 th October, 2010 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Suresh Shrimali, for the appellants. Mr. Manish Pitaliya, for the respondents. .... This second appeal is preferred to assail validity, correctness and propriety of the judgment and decree dated 18.3.2010 passed by learned Additional District Judge (Fast Track) No.1, Bhilwara affirming the judgment and decree dated 24.3.2007 passed by learned Civil Judge (Junior Division) No.2, Bhilwara in Civil Original Suit No.2/2007. The facts necessary to be noticed are that the appellant defendants are the tenants of the suit premises situated at the first floor of a building having area measuring 17' x 30'. Just adjacent to the suit premises the appellant defendants are also having their own property wherein they are running a guest house with lodging facility. The suit premises too is used for the purpose referred above. The respondent plaintiff filed a suit for eviction from the suit premises and that came to be decreed by the trial court by accepting bonafide necessity of the landlord. The judgment and decree granted by the trial court 2 came to be affirmed by the first appellant court, hence this appeal is preferred. The contention of counsel for the appellants is that the trial court as well as the first appellant court erred in decreeing the suit in view of the fact that the findings given are beyond the pleadings made in the plaint and also that admissions made in the cross examination by the respondent plaintiff himself and his son Rajendra are contrary to the findings. It is also submitted that the respondent plaintiff concealed quite important and material facts while pleading his bonafide necessity. An application under Order 41 Rule 27 Code of Civil Procedure is also preferred seeking permission to place on record and to consider certain additional documents in evidence. The argument advanced by counsel for the appellants is that the plaintiff claimed bonafide necessity on the count that his son Rajendra want to start business in the suit premises and he further want to raise construction to reside Rajendra with him, however, in view of the statements given by Rajendra he is residing and involved in business at Kankroli, thus, the claim of bonafide necessity is absolutely ill-founded. The allegation of concealment of material fact is supported by placing certain documents on record alongwith the application under Order 41 Rule 27 Code of Civil Procedure to establish 3 a fact that after filing the eviction suit an another shop in the year 1990 was rented out by the plaintiff to one Shantilal Soni. On basis of the documents aforesaid it is urged that the factum of availability of alternative accommodation on the date of filing the suit was concealed by the plaintiff, just to maintain the plea of bonafide necessity. On basis of the contention aforesaid, it is urged that the entire ground of bonafide necessity looses its foundation. While placing reliance upon the judgment of Hon'ble Supreme Court in Vinod Kumar Arora v. Smt. Surjit Kaur, reported in AIR 1987 SC 2179; and Smt. Krishna Khandelwal v. State of Rajasthan, reported in 2000(4) WLC (Raj) 357, it is contended that no evidence could have been adduced by the plaintiff in support of the facts not pleaded. According to counsel for the appellants Rajendra in his statements stated that he want to settle at Bhilwara only for the reason that his old father is suffering from cardiac problem and not otherwise, but no pleading regarding cardiac problem of the father or even of his old age is pleaded in the plaint. I have considered the arguments advanced. So far as the argument advanced regarding adducing evidence beyond the pleadings is concerned, that is absolutely merit less. True it is, the factum 4 of cardiac problem is not mentioned in the plaint but this fact was not the sole criteria before the trial court to determine bonafide necessity of the plaintiff respondent. It is just an incidental fact stated by the witness while narrating the reasons to desire for occupying the suit premises. The trial court as well as the first appellate court considered evidence in totality and on objective examination of that reached at a definite conclusion that in the old age of the plaintiff, the necessity of residing son with him is genuine. The statement given by Rajendra is just to substantiate the genuineness of the facts pleading bonafide necessity. It is not in dispute that the ground of bonafide necessity to establish son at Bhilwara is available in plaint. The other contention of the appellants that the entire ground of bonafide necessity is concocted and is only a pretext to get the rented premises evicted is also having no merit. The eviction suit was filed in the year 1987 and at that time Rajendra, the son of the plaintiff, was of 23 years. At that time he was residing with his in-laws at Kankroli and after a lapse of about a quarter century his necessity to stay with his old parents, as a matter of fact became more serious and warranted. By a flux of time his father too acquired advance age and he is certainly in need of the assistance of his only son. Pertinent to note here that the fact that Rajendra is the only son of 5 the plaintiff is not at all in dispute. The documents sought to be placed on record with the application under Order 41 Rule 27 Code of Civil Procedure are also of having no consequence. On basis of the documents aforesaid it reveals that a shop measuring 17.5' x 10.5' was rented out by the plaintiff to one Shri Shantilal Soni and that is after filing the suit in question. The availability of such a shop in no manner adversely effects the plaintiff's case. The plaintiff claimed his bonafide necessity for residential as well as commercial purpose and a small shop situated at ground floor in no manner could have satisfied the necessity claimed. In such circumstances even on consideration of the documents sought to be placed on record, it cannot be said that the plaintiff was not having a bonafide necessity or he concealed a fact that could have altered the findings given by the trial court. In view of the factual position discussed above, I do not find any substantial question of law involved in this appeal to interfere with the concurrent findings of facts given by the courts below. Accordingly, the second appeal is dismissed. ( GOVIND MATHUR ),J. kkm/ps.