1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT Ramesh Chand Jain Vs. Narsingh Lal through his LRs & Ors. (S.B. Civil Regular Second Appeal No.175/2010) S.B. Civil Regular Second Appeal under Section 100 CPC, 1908. Date of Order :- 26th July, 2010 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.G.K. Garg, for the appellant. Mr.Sudesh Bansal, for the respondents. This second appeal has been filed against the judgment and decree dated 08.09.2008, passed by the learned Additional Civil Judge (Jr. Division) No.5, Jaipur City, Jaipur. The learned Magistrate had decreed the suit for rent and eviction against the present appellant. The appellant has also challenged the judgment and decree dated 19.03.2010, passed by the Additional District Judge No.3, Jaipur City, Jaipur, whereby the learned Judge has upheld the former judgment. In brief, the facts of the case are that on 01.09.1965, a shop was given on rent by the plaintiff-respondent Nos.1 & 2, namely Narshing Lal & Om Prakash, on a monthly rent of Rs.65/- to the defendants. On 01.01.1974, the rent was increased to Rs.90/- per month. The defendants regularly paid rent to the plaintiff- respondents till 30.01.1977. Thereafter, they did not pay any rent. The plaintiffs filed a suit for rent and eviction against the defendants on the two grounds namely non-payment of rent @ Rs.2700/- from 01.02.1977 to 31st July, 1979 and non-payment of house tax 2 amounting to Rs.168.75. However, during the pendency of the suit, on 23.07.1995, the defendant No.2, Madan Lal Jain expired. His legal representatives were taken on record. Also, during the pendency of the suit, on 24.10.1995, the plaintiff, Narsingh Lal expired. His legal representatives were taken on record. Thereafter, both the parties produced their oral and documentary evidence before the learned trial Court. After considering the oral and documentary evidence, vide judgment and decree dated 08.09.2008, the learned trial court decreed the suit in favour of the plaintiffs-respondents. Aggrieved by the said judgment and decree dated 08.09.2008, the defendant No.2 (the appellant in this case) filed a first appeal before the learned Appellant Court. However, vide order dated 19.03.2010, the learned appellate court dismissed the first appeal and upheld the judgment dated 08.09.2008. Hence, this second appeal before this Court. Mr. G.K. Garg, the learned counsel for the appellant, has vehemently contended that according to the plaintiff-respondents, they had another shop available which was under the occupancy of Babu Khan. According to the plaintiff-respondents, Babu Khan was willing to vacate the said shop provided a certain amount was given as “Pagari” to him. However, the plaintiff-respondents did not reveal the amount involved for “the Pagri”. It is his contention that since another shop was readily available to the plaintiff-respondents, the case of bonafide necessity has not been established by them. On the other hand, Mr. Sudesh Bansal, the learned counsel for the plaintiff-respondents, has contended that no substantial questions of law is involved in the present case. Therefore, the second appeal is not maintainable. Moreover, both the 3 learned trial court and the learned first appellate court have dealt with the issue with regard to the availability of a shop which was under the occupancy of Babu Khan. After appreciating the complete evidence, available on record, both the learned courts below have concluded that while the case of default of payment of rent is not made out, but the case of bonafide necessity stands proven. Thus, both the courts are justified in passing the judgment and decree in favour of the plaintiff-respondents. Heard the learned counsel for the parties and perused the impugned orders. A bare perusal of the judgment dated 19.03.2010 clearly reveals that the learned first appellate court has noticed the fact that the learned trial court has validly concluded that both sons of the plaintiff No.1, Narsing Lal, namely Deen Dayal and Suresh Kumar needed the shop in order to carry out their jewelery business. The learned trial court has also noted that the landlord has greater need for a shop than the tenant. It has also noted with regard to the availability of the shop under the occupancy of Babu Khan. After noticing the fact that the shop under the occupancy of Babu Khan existed, the learned trial court had still concluded that the need of the landlord was greater than the need of the tenant. Moreover, the first appellant has noticed the fact that the tenant, having occupied the shop for decades, did not make any endeavor to search for any alternate premises for himself. Even if the statement of the plaintiff- respondents is taken to be correct that Babu Khan had agreed to vacate the shop provided “a Pagri” was paid to him, it cannot be held that the said shop, under the occupancy of Babu Khan, was readily 4 available to the plaintiff-respondents. Moreover, the detailed discussion of the evidence clearly shows that both the sons of the plaintiff No.1 greatly required the shop for their livelihood. Lastly, the entire case is based on questions of fact which have been appreciated by both the learned courts below. Since no substantial questions of law is involved in this case, there is no merit in this appeal. Hence, this petition is devoid of any merit. It is, hereby, dismissed. Consequently, the stay petition is also dismissed. (R.S.CHAUHAN)J. Manoj Solanki-