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S.B. Civil Second Appeal No.88/2010.
LRs. of Shri Charan Das.
vs.
Fazal Hussain and another.
Date : 3.5.2010
HON'BLE MR. PRAKASH TATIA, J.
Mr.RS Mankad, for the appellants.
Mr.Sandeep Saruparia, for the respondents.
– – – – –
Heard learned counsel for the parties.
The trial court decreed the suit of the
respondents/plaintiffs/landlords for eviction of
the appellants/tenants vide judgment and decree
dated 16.5.2006 on the ground of the personal
bonafide necessity of the plaintiffs and because
of committing default in payment of rent by the
appellants/tenants and further because of making
material alteration in the suit premises. The
trial court’s judgment and decree dated 16.5.2006
was upheld by the appellate court vide judgment
and decree dated 18.1.2010. Hence, this second
appeal.
Learned counsel for the appellants vehemently
submitted that the plaintiffs filed the suit
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without there being any necessity of theirs for
the suit premises and so far as the default is
concerned, according to learned counsel for the
appellants, they deposited the rent subsequently
and that was withdrawn by the plaintiffs/landlord,
therefore, the plaintiffs waived their right to
get decree for eviction on the ground of default.
Learned counsel for the appellants also tried to
assail the finding with regard to the allegation
of material alteration in suit premises by the
appellants.
I considered the submissions of learned
counsel for the parties and perused the facts of
the case as well as the impugned judgments.
So far as default in payment of rent by the
appellants is concerned, that fact cannot be
denied and, therefore, the appellants took the
plea that the respondents waived their right to
evict the appellants from the suit premises on the
ground of default. However, the said plea has not
been taken by the appellants before the trial
court or before the first appellate court. The
order of striking off the defence attained
finality and legality of that is not under
challenge in view of the fact that the appellants
are only challenging that the respondents waived
their right to evict the appellants from the
premises in question on the ground of default. In
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view of the fact of attaining finality, the
appellants cannot be heard on the issue of
commission of default. Furthermore, there is no
conscious waiver of the respondents so far as the
appellant’s default in payment of rent is
concerned nor there is implied waiver in any
manner.
The other questions are pure questions of fact
and which have been assailed only on the basis of
appreciation of evidence which is not permissible
under Section 100 CPC. The two courts below have
considered the entire facts and evidence and the
concurrent finding of fact cannot be interfered
unless substantial questions of law arise which is
not here in the present case.
Consequently, this second appeal deserves to
be dismissed and hence, dismissed.
(PRAKASH TATIA), J.
S.Phophaliya
