Raj Kumar vs Shanti Prasad

Shiv Kumar Sharma, J.—This is tenant''s second appeal against the decree and judgment dated August 24, 1998 of learned Additional District Judge No. 3, Jaipur City reversing the decree and judgment dated February 1, 1996 of Civil Judge (Jr. Dn.) (East) Jaipur City. The parties shall be referred hereinafter, in the manner, they were arrayed in the suit.

Contextual facts depict that the plaintiff instituted a suit in the court of Civil Judge (Jr. Dn.) (East) Jaipur City for recovery of rent and eviction in regard to tenanted premises on the grounds of bonafide necessity, nuisance and change of user. It was pleaded in the plaint that the premises was let out only for stitching work but the tenant started selling ready made garments. The defendant by installing counter in the chowk, created nuisance. The plaintiff also pleaded that the shop was required by him reasonably and bonafidely. The defendant refuted the averments made in the plaint and asserted that the suit shop was let out for the purpose of stitching and selling the clothes. The plaintiff did not have reasonable and bonafide necessity of the shop and the defendant never created nuisance. On the basis of pleading of parties as many as ten issues were framed. The Trial Court decided issues Nos. 2, 3, 4, 5, 6 and 7 against the plaintiff and while giving the benefit of first default to the defendant dismissed the suit vide judgment and decree dated February 1, 1996. Learned appellate court however decided the issues regarding change of user and nuisance against the defendant and allowed appeal of the plaintiff vide judgment and decree dated August 24, 1998. The reversal finding of learned first appellate court has been assailed by the defendant in the instant second appeal.

I have heard learned Counsel for parties and carefully scanned the material on record.

The relevant portion of the rent agreement which requires my consideration is reproduced below:--

...This premises has been taken by me for the purpose of stitching work only and I shall not carry on any other work than the above said work.

The word "only" clearly spells out the intent of the parties which restricts the user of the tenanted premises, only for the business which is stated therein and no other.

The defendant Raj Kumar Sharma (DW. 1) in his deposition stated thus--

�eSa izkjEHk esa flykbZ dk O;olk; ,oa fuEu Lrj ds jsMhesM oL= cspus dk O;olk; djrk FkkA /khjs&/khjs jsMhesM diM+ksa dk O;olk; cus ij eSuas dsoy jsMhesM diM+ksa dk O;olk; dj fy;k flykbZ dk dk;Z ogka ls gVk fn;k�

The defendant further deposed as under:--

�bl nqdku ds ckgj dkmUVj ;nk dnk lhtu esa yxkrk gwaA�

Learned first appellate court after closely considering the rent agreement Ex. 1 and the evidence adduced by the parties held that the tenanted premises was used by the defendant for the changed business and the defendant committed nuisance by installing counter outside the suit premises. In my opinion learned first appellate court rightly reversed the decree of the learned Trial Court. In M. Arul Jothi and Another Vs. Lajja Bal (Deceased) and Another, their Lordships of the Supreme Court indicated that where the shop is being used by the tenant for the changed business, the tenant was liable for eviction. Learned Counsel for the defendant on the strength of various authorities pursuaded me to interfere with the finding of the first appellate court, but I do not see any ground to interfere. I am satisfied that no substantial question of law arises in the instant second appeal.

In Arumugham (Dead) By Lrs. and Others Vs. Sundarambal and Another, the Apex Court held that it is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence only other side. It is not permissible for the second appellate court to interfere with such findings of the first appellate court only on the ground that the first appellate court had not come to grips with the reasoning given by the appellate trial court.

For these reasons, instant appeal being devoid of merits stands dismissed without any order as to costs.