1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Ram Kishore Vs. Smt. Sushila Devi S.B. CIVIL SECOND APPEAL NO.255/2008. UNDER SECTION 100 OF THE CPC. DATE OF JUDGMENT: 5th October, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr. Veyankatesh Garg for the appellant. Mr. B.K. Sharma ) for the respondent. Mr. Shiv Lal Verma) BY THE COURT: In this second appeal the appellant has prayed to set aside the judgment and decree passed by the learned Additional Civil Judge No.3 (Junior Division) Ajmer in Civil Suit No.173/1993 (43/1989) (Smt. Sushila Devi vs. Ram Kishore) and that of the learned Additional District Judge No.3, Ajmer passed in Civil Appeal No.78/2005 (61/2002) (Ram Kishore through Smt. Narayani Devi Vs. Smt. Sushila Devi) whereby the judgment and decree of the trial court has been confirmed. The respondent-plaintiff Smt. Sushila Devi filed a suit for arrears of rent and eviction of defendant-appellant from the suit premises on various grounds. On the basis of pleadings of the parties, the trial court framed seven issues including relief. The learned trial court vide its judgment and decree dated 24.5.2002 decided issue nos. 1 and 3 in favour of 2 defendant which were in relation to default committed by the defendant-appellant and issue nos.2, 4, 5 and 6 were in relation to rent due for more than six months of filing of the suit and comparative hardship and also in relation to standard rent have been decided in favour of the plaintiff-respondent. The trial court vide its judgment dated 24.5.2002 decreed the suit for eviction and also decreed the suit in relation to arrears of rent in order to vacate the premises and hand over vacant possession within two months of passing of the judgment and decree. The defendant having felt aggrieved, preferred appeal which came to be decided by the Additional District Judge, Ajmer vide impugned judgment and decree dated 24.5.2002 upholding the judgment and decree passed by the learned trial court. Hence, this second appeal has been filed. Heard learned counsel for both sides. In this case, notice were issued on filing second appeal and record was called. Record has been received and the matter has been heard at admission stage. Learned counsel for the appellant after arguing the matter for some time submitted that he does not want to assail the findings recorded by the trial court which have been confirmed by the learned appellate court as the findings are based on proper appreciation of evidence. It is submitted that the appellant be given some time to settle himself in business and to vacate the premises. 3 Learned counsel for the respondent submits that the appellant has already enjoyed the property for long time and now he should vacate the premises. He submits that some reasonable time be given to him for vacating the premises. It is also submitted that the findings of the courts below are concurrent in nature and since the second appeal does not involve any substantial question of law to be decided, therefore, the same be dismissed. I have considered the submissions made before me and carefully perused the material available on file. It is not necessary to discuss the findings recorded in detail for the simple reason that no challenge has been made. It is suffice to say that the suit was filed for eviction by the plaintiff-respondent and issue nos. 2 and 5 in the present matter are the relevant issues which are in relation to the premises which were taken by the defendant-appellant on rent and the defendant appellant having sufficient accommodation with him to do business and is not in the need of the present suit premises. This aspect of the matter has been proved by the plaintiff in his statement and this has also been admitted by the defendant in his statement that he has been delivered vacant possession of her house and shop which were in his ownership and that place is sufficient for his need. In relation to above factual aspect, Ex.2-A has been tendered in evidence and that clinches the entire issue that defendant-appellant is 4 having adequate accommodation for his residential purpose and also for his business. The issue in relation to comparative hardship framed by the trial court has also been decided in favour of the plaintiff on the basis of decision arrived at by the trial court on issue nos.2 and 5. In view of above findings recorded by the trial court and the same having been confirmed by the learned appellate court, there does not appear any substantial question of law involved in the present matter and the appeal is devoid of merit and is liable to be dismissed. In the result, this second appeal is dismissed with the following directions: (i) The appellant shall vacate the rented premises latest by 31st March, 2011. (ii) The appellant shall pay/deposit either in the court or in the bank account of the plaintiff a sum of Rs.70/- per month as mesne profit till premises is vacated. (iii) The appellant shall also furnish an undertaking to the above effect to the satisfaction of the learned appellate court that he shall vacate the premises latest by 31st March, 2011 and during this period i.e. from 1st November, 2009 till 31st March, 2011 he shall regularly pay a sum of Rs.70/- per month as mesne profits for the use of the premises. 5 (iv) The appellant shall also pay/deposit arrears of rent if due in the bank account of the respondent or in the trial court within a period of two months from today. (v) The monthly mesne profit @ Rs.70/- per month be paid by 15th of each succeeding month. In case the appellant fails to deposit or pay mesne profits consecutively for two months or violates above conditions, then the plaintiff-respondent shall be at liberty to get the decree executed without reference to the court. (S.P.PATHAK) J. bblm