Judgment:
R.N. Sahay, J.
1. This appeal by the tenant arises out of an eviction suit filed by the landlord-plaintiff for eviction of the appellant from the suit premises on the ground of personal necessity. The interesting question for consideration is whether the landlord could sue the appellant for eviction on the ground of personal necessity when only six months prior to the filing of the suit he had taken an advance of Rs. 25,000 on condition that Rs. 100 out of it Will be monthly adjusted towards rent and accordingly Rs. 500/- were being paid by the appellant as Rs. 100/- was to be adjusted every month. The rent of suit premises is Rs. 600/- per month.
2. The first plaintiff is the owner of holding No. 248 which contains two shops out of which one shop is under the tenancy of the appellant at the rate of Rs. 600/- per month. The shop was let out for a period of five years commencing from 25th May, 1985 and ending on 24th May, 1990 on the basis of oral agreement. It was also agreed that upon expiry of the aforesaid period of five years the tenant would vacate the suit premises. The second plaintiff, who is the son of plaintiff No. 1, has become an adult and wanted to start a grossary shop. This, according to the plaintiffs, was the bona fide need. The landlord filed the suit ignoring the advance of Rs. 25,000/- taken by him. The plaintiffs have denied the receipt of Rs. 25,000/from the appellant. The appellant produced a duly stamped receipt. The plaintiff No. 2 disputed its signature and writing.
3. Both the Courts below have held that the plaintiff No. 1 had taken Rs. 25,000/- as an advance from the appellant subject to adjustment of future rent. The advance was given in January, 1991.
4. As regards advance the learned Additional District Judge says:
Secondly there is also dispute regarding payment of the advance of Rs. 25,000/- by defendant to the plaintiff. The plaintiff has denied to have received any advance of Rs. 25,000/- from the defendant, as claimed. The learned Munsif has held that an advance of Rs. 25,000/-had been made to the plaintiff by defendant and it has also been observed by the learned Munsif that the said advance Will be adjusted towards the arrears of rent which have been decreed and if any amount remains to be due after adjustment, the defendant Will be at liberty to realise the same by taking separate legal proceeding. This finding regarding payment of advance and adjustment towards decree of arrears of rent is against the plaintiff but no any cross appeal or cross objection has been filed by the decree holder rather the matter has been raised by the learned lawyer of the decree holder in course of hearing appeal. Hence, in the present appeal now only point is to be considered is No. 1 whether the plaintiff respondent got bonafide and reasonable requirement of the suit house and on this ground, he is entitled for a decree of eviction or not?
5. So far signature and handwriting is concerned, the learned District Judge says:
Handwriting and finger print expert D.W. 8 Sita Ram Prasad Sharma has also been examined and his report has been marked Ext. C. The handwriting expert is of the opinion that the disputed handwriting and signature of the receipt of plaintiff Raja Ram Sao tallies with the admitted signature and writing and the expert has supported that the disputed signature and the admitted signature of the plaintiff Raja Ram Sao is handwriting of the same person. No contrary expert has been examined from the side of plaintiff. There is only denial of the plaintiff that the alleged receipt does not bear his signature but from the evidence of defendant as well as from the evidence of his witness PW. 5 Ram Bachan Prasad and Ramashish Prasad, I find that the defendant has been able to show that the plaintiff was paid Rs. 25,000/- as advance and in this regard he also executed a receipt and after signing on stamp paper handed over to the defendant. The evidence of the expert D.W. 8 and his report marked Ext. C go to show that the receipt produced by the side of defendant bears the signature of the plaintiff landlord Raja Ram Sao. Hence, I think that the defendant has been able to prove his story of advance of Rs. 25,000/- made to the plaintiff landlord. The learned Munsif has rightly held that the defendant made an advance of Rs. 25,000/- to the plaintiff landlord and the said advance should be adjusted against the arrears of rent. I find no any justification to compel the tenant to start separate proceeding for recovery of the advance made to the landlord. If there is arrears of rent to be recovered from the landlord. Hence, I find that the learned Munsif has rightly given direction that the advance made to the plaintiff landlord should be adjusted against the arrears of rent due and if any amount after adjustment remains due against the landlord, the same should be realised separate proceeding by the defendant. I find no any materials to entertain with the judgment and the findings of the learned Munsif.
6. Both the Courts below have found that the landlord had taken an advance of Rs. 25,000/- just six months prior to the institution of the suit. In my opinion, suit for eviction on the ground of personal necessity is not maintainable till the entire advance of Rs. 25,000/- be adjusted, and the tenant would continue till the entire amount is adjusted. The suit filed was premature.
7. In the result, the appeal is allowed and the judgment dated 18th December, 1996 passed in Eviction Appeal No. 3/96 is hereby set aside. The plaintiff Will be at liberty to file fresh suit. No costs.