Bismillaha vs Laxmi Narayan and Others

Dr. Vineet Kothari, J.—The appellant/defendant, Smt. Bismillaha W/o. late Sh. Noor Mohd. Kunjada, has preferred the present second appeal aggrieved by the judgment and eviction decree dated 21.02.2011 passed by learned Additional District Judge No. 3, Udaipur, whereby the appeal (Civil Appeal No. 34/2007-Laxminarayan and Ors. Vs. Smt. Bismillaha) filed by the respondents/plaintiffs came to be allowed while reversing the judgment and decree dated 10.08.2007 passed by learned Civil Judge (Jr. Division), Udaipur City (South), Udaipur in Civil Suit No. 33/2002- Laxmi Nararyan and Ors. Vs. Smt. Bismillaha, whereby the suit for eviction filed the respondents/plaintiffs was dismissed.

The respondents/plaintiffs filed suit for eviction as well as for arrears of rent of shop was let out to the appellant/defendant by the father of the plaintiffs (late Sh. Purshottam Lal Sharma). A rent-note dated 07.01.1985 was also executed by the appellant in favour of respondent No. 3/plaintiff-Hikmichand at a monthly rent of Rs. 200/- and Rs. 20/- for electricity charges. The appellant/defendant stopped to pay the monthly rent since 07.09.1985, therefore, the suit was filed by the plaintiffs for seeking eviction of the appellant/defendant on the ground of bonafide need of plaintiffs, claiming arrears of rent and on the ground of subletting.

Learned counsel for the appellant/tenant submitted that the lower appellate court below has erred in granting eviction decree in favour of respondents/plaintiffs, as the ground of subletting was not proved and in fact the appellant being 80-85 years of age was doing business with the help of servants, which cannot be termed as subletting. He further submitted that the earlier suit filed by the plaintiffs seeking eviction was dismissed, therefore, the present subsequent suit has wrongly been decreed by the appellate court below.

The learned trial court dismissed the plaintiff''s suit vide judgment and decree dated 10.08.2007 in the following manner:-

The first appeal filed by the respondents/plaintiffs, came to be allowed by the learned lower appellate court vide the judgment and decree dated 21.02.2011 in the following manner:-

Having heard the learned counsel for the appellant/defendant/tenant, this Court is of the opinion that no substantial question of law arises in the present case requiring consideration by this Court under Section 100 of Code of Civil Procedure, 1908.

Consequently, the present second appeal filed by the appellant/defendant is found to be devoid of any merit, and the same is hereby dismissed. No costs. A copy of this judgment be sent to the concerned parties and the courts below forthwith.

The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit shop to the respondent-plaintiff within a period of one year from today i.e. on or before 31.01.2016 and shall pay mesne profit @ Rs. 1000/- per month commencing from February, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent/plaintiff also and in case there is any default in payment of mesne profit, the period of one year for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the respondent/plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/tenant shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondent-plaintiff within a period of one year from today i.e. on or before 31.01.2016 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.