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Judgment
S. Murtaza Fazl Ali, C. J.
This is a defendant's appeal in a suit for ejectment filed by the plaintiff on the ground that the shop in question was required for the personal
necessity of the plaintiff and his grandsons, who wanted to start their new business therein. The shop was leased out to the defendant as far back
as Maghar 4, 2006 (Samvat) and the present suit was brought some time in February, 1966. The suit was decreed by the City Judge, Jammu, who
accepted the plaintiff's case and held that the necessity alleged by the plaintiff was proved. The defendant went up in appeal to the District Judge
who upheld the judgment and the decree of the trial Court and dismissed the appeal. The defendant then came up in second appeal to this court
which was heard by Bhat J. who by his order dated May 21, 1970 confirmed the findings of fact arrived at by the courts below and dismissed the
appeal but granted leave to file appeal under the Letters Patent to the defendant. Hence this appeal before us.
Mr. Mahajan appearing for the appellants submitted two points before us. In the first place he urged that the suit had abated because the plaintiff
had died before the judgment could be pronounced. This contention, however, does not appear to be tenable because by virtue of Order 22 Rule
6 of the Code of Civil Procedure, where the plaintiff dies after the hearing but before the pronouncement of judgment there is no abatement. In the
present case the arguments in the case concluded on May 8. 1970 and the plaintiff died 12 days later i. e- on May 20, 1970 and the judgment was
pronounced on May 21, 1970 In these circumstances the present case clearly fell within the purview of Order 22 Rule 6 of the Code of Civil
Procedure, which prevents abatement. The first contention raised by Mr. Mahajan is, therefore overruled.
It was next contended by Mr. Mahajan that as the plaintiff died before the judgment could be pronounced, the necessity pleaded by him in case
was wiped out by his death and the Court was entitled to take the subsequent facts into consideration. This argument would have had some force if
the plaintiff had pleaded one necessity only namely that of his own personal occupation. In the instant case, however, the plaintiff has clearly
mentioned that he required the shop for starting business not only for himself but also on behalf of his grandsons and later in the evidence he proved
this necessity by showing that he required the shop for starting business for his grandsons who were economically dependent upon him and formed
the members of the same family. This portion of the necessity has been held by all the courts below to have been proved. This is a pure finding of
fact which cannot be interfered by us in Letters Patent Appeal.
Furthermore, as the necessity of the plaintiff for the purpose of using the shop for his grandsons has been proved, the suit cannot be dismissed. I
am fortified in this view by a decision of the Delhi High Court reported in 1970 Ren CR 757 (Delhi.) In these circumstances therefore this
contention is also rejected.
Lastly Mr. Mahajan submits that the defendant should be given a reasonable time to vacate the premises and he prayed that at least one year's
time should be given to him for the purpose. We are, however, unable to accede to his contention. The suit was filed as far back as 1966 and
reached its conclusion in the year 1972.The tenant had admittedly six years during which he occupied the shop even though the landlord required
the shop for his personal necessity. There is no equity at all in his favour to warrant extension of time. In these circumstances, therefore, the prayer
of Mr. Mahajan is rejected.
The appeal, therefore, fails and is dismissed with costs.