\y^09 HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J- Second Appeal No.33 of 2007 Sardar Dilbag Singh versus Satish Sakhala ORDER Postfor XZ .01.2009 Sd/- Dilip Raosaheb Deshmukh Judge HIGhLCOURTOF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. Second Appeal No. 33 of 2007 APPELLANT DEFENDANT RESPONDENT PLAINTIFF Sardar Dilbag Singh, aged about 66 years, S/o late Sardar Sohan Singh - Sikh Gurunanak Auto, G.E. Road, Rajnandgaon, Tah '& Distt. Rajnandgaon (C.G.) versus Satish Sakhala, aged about 29 years, S/o Shri Prakash Chand Sakhala, Jain Maravari, R/o Kamthi Line, Rajnandgaon, Tah & Distt. Rajnandgaon (C.G.) Appeal under Section 100 ofthe Code of Civil Procedure Present: Shri Satyawan Agrawal, counsel for the appellant. Shri Rajeev Shrivastava, counsel for the respondent. ORDER (Passed on this iz'f1- day of January, 2009) Arguments of the learned counsel for the appellant were heard on admission. 2. This is unsuccessful tenant's appeal. 3. In this appeal, it is not in dispute that the appellant is the tenant of the respondent in the shop situated on G.E.Road, Rajnandgaon and mentioned with red boundary marks in the map Schedule-A annexed to the plaint (henceforth (the suit shop'). The said shop was let out for non- residential purpose. p .^^s^ ^y^ -^ r'%^t"^, 1 i. .""yj ^."'^sv >'%^^...^^' 4. The respondent-plaintiff had instituted Civil Suit No.15-A/2001 before the 2nd Civil Judge, Class-11, Rajnandgaon on 07.10.99 for eviction of the appellant on the ground of bona fide requirement of the suit shop for non-residential purposes. The suit was decreed by the trial Court in favour ofthe respondent/plaintiff. Being aggrieved, the appeltant preferred First Appeal (Civil Appeal No.20-A/2003 before the 1st Additional District Judge, Rajnandgaon. During the pendency of the appeal, an application under Order 6 Rule 17 C.P.C. for amendment in the written statement was filed by the appellant on the ground that during pendency of the appeal possession of the shop adjacent to the suit shop occupied by tenant Smt. Surjeet Kaur has been received by the respondent/plaintiff on 25.07.2004 which satisfies the bona fide requirement ofthe respondent/plaintiff. The 1st Additional District Judge, Rajnandgaon allowed the said amendment in the written statement, permitted the respondent/plaintiff to make consequential amendment and remanded the suit under Order 41 Rule 25 C.P.C. afterframing two additional issues as under: "(i) ^n, f^TJf^r ^ 3ii5iP<i f^Tf^? 17.2.2003 ^ M^^iia ^T^t (^^R^Nt) ^t ^^f ^ 'wiPi^ ^T ''t^ '<^<<i<fl 'FT^T snl^ra^ ^' 9TI<r igt 'IPTT t? (2) ^TT. ^4^1<tdl'J,<HI^ ^ '<^c||<ft VT^T ^T^ (<3^Rm^) ^ HTT<T ^t^ ^ ^H^t c||^l[^cb 3iici^^4)di q>r srreTT? 4^^ia<i^T ^RR®TRT '^ ^PPT -^T t?" i ~- 1 .^"'^?^."•^>. "~iTS^, '•r- ^BsSh. i "•'^-..-.,-„.,..^:i^ 5. The trial Court permitted the appellanVdefendant to incorporate the amendment in the written statement. The consequential amendment applied by the respondenVplaintiff that the shop vacated by Smt. Surjeet Kaur was an old shop in a dilapidated condition and being adjacent to G. E. Road, 12 feet wide and 8 feet long portion of the said shop was likely to be demolished for widening the G. E. Road, and therefore, the bona fide requirement of the suit shop was not satisfied by the vacation of the said shop by Smt. Surjeet Kaur, was also allowed 6. The 2nd Civil Judge Class-11 Rajnandgaon permitted the parties to lead evidence and recorded a reasoned finding that although after the judgment and decree dated 17.02.2003 passed in Civil Suit no.15-A/2001, the respondent/plaintiff had obtained possession of an adjacent non- residential portion vacated by Smt. Surjeet Kaur, it did not satisfy the bona fide requirement of the respondent/plaintiff for the suit shop for starting his business. 7. The lower appellate Court has, by the impugned judgment and decree dated 13.11.2006, while affirming the finding recorded by the trial Court, dismissed the appeal. 8. Heavy reliance was placed by Shri Satyawan Agrawal, learned counsel for the appellant on the obsen/ation made by the 1st Additional District Judge, Rajnandgaon in paragraph 11 of the judgment dated 21.10.2005 passed in Civil Appeal No. 20-A/2003 which stated that the respondent/plaintiff had nowhere pleaded in the suit that apart from the suit shop, he required bona fide any other adjacent shops for non- residential purpose., It was argued that both the Courts below have travelled beyond the pleadings while allowing the consequential amendment sought by the respondent/plaintiff that for satisfying the bona fide requirement of the suit shop for non-residential purpose, the plaintiff would require the vacant possession of not only the shop vacated by Smt. Surjeet Kaur but also the shops occupied by other tenant Prem Kumar Negi. It was also argued that the finding recorded by both the Courts below regarding satisfaction of the bona fide requirement of the suit shop by the respondent/plaintiff for non-residential purpose is perverse. 9. Having considered the submission of the learned counsel for the appellant, 1 have perused the record with utmost circumspection. Since the judgment dated 21.10.2005 passed in Civil Appeal No.20-A/2003 whereby thesuit was remanded to the trial Court under Order 41 Rule 25 of the C.P.C. for recording findings on the issues framed by the lower appellate court remained unchallenged and had attained finality, the trial Court was right in allowing consequential amendment of the respondent/plaintiff that besides the shop' vacated by Smt. Surj'eet Kaur, he would also require vacant possession of the adjacent two shops occupied by Prem Kumar Negi for satisfying his requirement fpr non- residential purpose, and therefore, vacation of an adjacent shop by Smt. Surjeet Kaur would not satisfy his bona fide requirement of the suit shop. 10. Regarding paragraph 11 of the judgment passed by the learned 1st Additional District Judge in Civil Appeal No. 20-A/2003, it is merely an observation with no specific finding which would debar the respondent/plaintiff from making a consequential amendment to explain his bona fide requirement of the suit shop. 11. The judgment of the lower appellate Court is a detailed and exhaustive judgment, which has taken into consideration each and every available piece of evidence and relevant circumstances and assessed the bona fide requirement of the suit shop by the respondent/plaintiff for non- residential purpose with objectivity consistently with the relevant principles of law, and therefore, 1 am ofthe considered opinion that the concurrent finding recorded by the lower appellate Court that the respondent/plaintiff has satisfactorily proved the ground for eviction under Section 12(1)(f) of the Chhattisgarh Accommodation Control Act, 1961 is impeccable. l fully concur with the view taken by the lower appellate Court. Therefore, the last limb of the argument advanced by the learned counsel for the appellant must also fail. 12. In this view of the matter, l am of the considered opinion that no substantial question of law arises for determination of this appeal. Consequently, this appeal is dismissed at the admission stage. There shall be no order as to costs. Sd/- l Dilq) Raosaheb Deshmukh Judge Anjani