-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Second Appeal No.264 of 2009 Ramesh Chand son of Shri Manphool Chand and Another VERSUS Pawan Kumar son of Shri Chandi Lal Date of Order :::: 7th April 2010 Hon'ble Mr. Justice Dalip Singh Shri Ajeet Bhandari, Counsel for the defendant-appellants Dr. Prakash Chand Jain Shri Ambrish Vashishtha, Counsel for the plaintiff-respondent *** By the Court : This is a defendant-tenant's second appeal, under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 07.03.2009 passed by the learned Additional District Judge (Fast Track) No.4 Bharatpur Headquarter Deeg confirming the judgment and decree dated 13.05.2004 passed by the learned trial Court, whereby the suit filed by the plaintiff-respondent for eviction has been decreed. The decree has been passed on the ground that the premises has been lying vacant and on the ground of non-user. In this respect the two Courts below have concurrently held under Issue No.2 that the premises in dispute, which is a shop situated in Kama District Bharatpur has been lying vacant and closed for a considerable period of time and on the ground of non-user both the learned Courts below have decreed the suit. Learned counsel for the defendant-appellants challenged the aforesaid findings on Issue No.2 before this Court alleging therein that Issue No.2, which was framed did not confirm to the requirement of Section 13 (1) (j) -2- of the Rajasthan Premises (Control of Rent & Eviction) Act,1950. Inasmuch as what has been stated by the plaintiff is that the shop was lying closed and locked for over a period of six years and as a result of which the shop has been damaged. So far as the aforesaid submission of the learned counsel for the defendant-appellants is concerned, both the parties led evidence on Issue No.2 and from perusal of the record, which was summoned by this Court, it goes to show that the parties never objected to the aforesaid issue and have led evidence consciously with regard to the fact of non-user. The plaintiff and his witness specifically deposed to that effect and the defendant-appellants cross-examined the plaintiff's witnesses in that regard regarding the fact of non-user and the shop remaining closed. Apart from that defendant's witnesses and the defendant himself has deposed with regard to facts germane to the aforesaid issue No.2 and have led both direct evidence and have been cross-examined on that issue. The parties being fully conscious about the case that was set-up by the plaintiff and the ground on which the eviction was sought and have led evidence and even cross-examined the witness of the same cannot be permitted to raise this issue in second appeal. The question of non-user is a question of fact and the two Courts below after having appreciated the evidence have arrived at findings of fact that the shop in dispute has been lying vacant and was not in use for more than six-years as alleged. In view of the aforesaid, I find no substantial questions of law in this second appeal under Section 100 C.P.C. Accordingly, the second appeal is dismissed summarily. -3- Learned counsel for the defendant-appellants submitted that some reasonable time may be allowed to the appellants to vacate. In the facts and circumstances of the present case, it is directed that in case the appellant furnishes an undertaking before the learned trial Court within a period of two weeks from today to the effect that the appellant would handover vacant and peaceful possession of the premises in dispute to the decree-holder on or before 28th February 2011 and further that he would pay or deposit all arrears of rent upto 31st March, 2010 with the learned trial Court, as directed by the learned trial Court, within the aforesaid period of two weeks and further undertakes that the appellant would not create any third party interest in the premises in dispute and shall not sublet, assign or part with the possession of the same to any person and would continue to pay the rent by 15th day of the next succeeding month during the aforesaid period. If such an undertaking is submitted within a period of two weeks from today, the learned counsel for the respondent-decree-holder submits that the decree-holder-respondent would not execute the decree upto 28th February 2011. It is further made clear that in case of default in the payment of rent for any two months or failure to comply with any of the above conditions within the time indicated above, it would be open for the decree-holder- respondent to execute the decree. The second appeal is accordingly dismissed subject to the aforesaid. The stay application also stands disposed of. (Dalip Singh), J. Ashok/