S.B. Civil Second Appeal No.338/2007 Smt. Bhaggu Bai @ Bhagwanti Vs. Premlata Jain Date:02/09/2008 HON'BLE Mr. JUSTICE ASHOK PARIHAR Mr. Rajendra Prasad, for appellant. Mr. Amitabh Jatav, for respondent. BY THE COURT: Suit for eviction filed by the plaintiff- respondent on the ground of default, non-user and bonafide necessity was decreed by the trial court only on the ground of bonafide necessity vide judgment and decree dated 12.5.2006. The issues of default and non-user were, however, decided against the plaintiff-respondent. On a further challenge, the first appellate court though confirmed the judgment and decree passed by the trial court on the ground of bonafide necessity, however, decided the issue of default also in favour of the plaintiff-respondent vide judgment and decree dated 21.3.2007. Learned counsel for the appellant submitted that in absence of any cross objection by the plaintiff-respondent, the lower appellate court could not have decided the issue of default in his favour. It has further been submitted that the issue in regard to bonafide necessity has also not been decided properly so far as reasonableness of requirement has not been considered at all. After hearing learned counsel for the parties, I have carefully gone through the material on record. While deciding issue of bonafide necessity, both the courts below have considered the issue of comparative hardship as also partial eviction as per evidence available on record. Even the decree of trial court on bonafide necessity has been maintained by the lower appellate court. As such, any finding on default is of no relevance. On the basis of concurrent findings of fact since after due consideration proper discretion has already been used by both the courts below, in the facts and circumstances, no further interference is called for by this court, moreso, when no substantial question of law arises. However, in the interest of justice, the defendant- appellant may now vacate the suit premises on or before 1.12.2008. The defendant-appellant shall continue to pay the monthly rent till the date of vacation of the suit premises. An undertaking in this regard be submitted by the defendant-appellant before the trial court within 15 days. In case of violation of any of the conditions of undertaking, the plaintiff-respondent shall be free to execute the decrees passed by the courts below in accordance with law. With the above liberty and directions, the appeal is disposed of accordingly. (Ashok Parihar) J.