Khemchand vs Santosh Kumar and Another

Narendra Kumar Jain, J.—Heard learned Counsel for the Appellant.

Plaintiff-Respondent No. 1 filed a suit for eviction in the trial Court against Defendant No. 1/Appellant and Defendant No. 2/Respondent No. 2, which was decreed by the trial Court against Defendant No. 1/Appellant on the ground of default in making payment of rent and reasonable bonafide necessity of Plaintiff. Being aggrieved with the same, appeal was preferred by the Defendant No. 1, which was also dismissed by the First Appellate Court, hence, this second appeal has been preferred on behalf of Defendant No. 1.

Learned trial Court as well as First Appellate Court, both, while discussing issue No. 1 with regard to default in making payment of rent, have observed that provisional rent in the case was determined vide order dated 22.10.2002 and it was held that Defendant No. 1 has not deposited or tendered rent to the Plaintiff since 01.01.1999 and even after determination of provisional rent, Defendant No. 1 has not deposited the amount of rent, therefore, his defence was struck off vide order dated 08.10.2004. The said order was not set aside by any of the Courts, in these circumstances, the learned trial Court came to a conclusion that Defendant No. 1 is liable to be evicted on the ground of default in making payment of rent also. The finding of the trial Court has been affirmed by the First Appellate Court, therefore, the question of default in making payment of rent, in the facts and circumstances of the case, is purely a question of fact and there is concurrent finding of fact by both the Courts below, which cannot be interfered with by this Court in second appeal u/s 100 CPC.

Both the Courts below have also recorded concurrent finding in respect of reasonable bonafide necessity of the Plaintiff of rented premise. The question of bonafide necessity of rented premise, in the facts and circumstances of the case, is also a question of fact and there is concurrent finding of fact by both the Courts below, which cannot be interfered with by this Court in second appeal u/s 100 CPC.

No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine.

ORDER

S.B. Civil Misc. Stay Application No. 595/2009

Since the main appeal itself has been dismissed, therefore, this stay application does not survive and the same also stands dismissed.