GYANCHAND DARSHANLAL v. BALKISHAN — 1979 DIGILAW 263 (MP)

JUDGMENT : ( 1. ) THIS is an appeal against the Judgment and decree passed by the Third Additional District Judge, Gwalior in Civil Appeal no. 76-A of 1977, reversing the judgment and decree dated 1-4-1977, passed by the Third Civil Judge, Class II, Gwalior in Civil Suit No. 39-A of 1973. ( 2. ) THE suit of the plaintiffs in the trial Court was on the following allegations. Plaintiffs Gyanchand, Surajmal and Radheshyam are real brothers and they constitute a joint Hindu Family. Gyanchand is the Karta of the family and the House No. 33 /96, situate at Sadar Bazar, Morar is a joint Hindu Family property. The defendants also constitute a joint Hindu family and defendant No. 1 Balkishan is the Manager and Karta of the family and he does the business in the disputed shop, which belongs to the plaintiffs. Defendants are Balkishan, Shrilal, Ramesh who are sons of Ramcharan and santobai is the widow of Ramcharan. The plaint further says that deceased ramcharan took on rent the disputed shop at Rs. 25 and a rent-note was executed on 23-6-1966 in favour of the plaintiffs Nos. 1 and 2 only as plaintiff no. 3 was minor at that time. The disputed shop is marked by red ink in the map which is filed along with the plaint. Ramcharan is now no more and defendants Nos. 1 to 4 are the legal representatives. The tenancy is a monthly tenancy and it starts on the first of every month. Defendants are paying the rent and are in possession of the shop as tenants. ( 3. ) AT present the plaintiffs are carrying on their business in the name of Sojiram Vidhichand and they are dealing in gold and silver ornaments. This business is done by plaintiff No. 1 in one of the shops which is owned by the joint Hindu Family. Plaintiff No. 2 is doing business in firm Ramjidas surajmal, which is a registered firm. The business carried on by this firm is of selling and buying utensils. Plaintiff No. 3 is without any business and, therefore, the plaintiffs genuinely need the disputed shop for carrying on the business of cloth which will be run by plaintiff No. 3. For the said purpose they have no reasonably suitable alternative accommodation in their possession in the city. Plaintiff No. 3 is without any business and, therefore, the plaintiffs genuinely need the disputed shop for carrying on the business of cloth which will be run by plaintiff No. 3. For the said purpose they have no reasonably suitable alternative accommodation in their possession in the city. The plaintiffs have two shops in their possession, but they are in a lane and adjacent to those shops, there are shops of sweet-meat makers and as such, those shops are not suitable for carrying on the business of cloth. Even otherwise, in this portion of the house, the material for constructing the house is stored and as such, plaintiff No. 3 is in need of the disputed shop for carrying on his business of cloth. The plaintiffs have funds with them also. Defendants are not paying the rent regularly and they are in arrears of rent from 1-11-1970. A notice of demand was sent to them on 17-11-1972, but in spite of that notice, the arrears of rent have not been paid by the defendants to the plaintiffs. Therefore, they are defaulters regarding the payment of rent and on the basis of default, the plaintiffs are entitled to get possession of the disputed shop. A notice terminating the tenancy of the defendants was served on them on 24-11-1972 and by the said notice, the tenancy was terminated from 31-12-1972. In the said notice, an option was given also that if the defendants feel that their tenancy comes to an end on different date than 31-12-1972, then they may treat their tenancy terminated on the said date and should vacate the suit premises. Then the plaint allegations say regarding cause of action and payment of court-fees and the relief. The suit was filed on 6-2-1973. ( 4. ) HERE, it will be better to mention that the plaintiffs amended their plaint on 7-4-1975 and on 11-11-1975. By first amendment, they alleged that in the month of October, 1974, plaintiff No. 3, who was sitting idle upto that date, has taken a shop on rent at Sadar Bazar, Morar and he is carrying the business of cloth in the rented shop. He wants to open the business in his own shop and, therefore, he wants the disputed shop to be vacated by the defendants. He wants to open the business in his own shop and, therefore, he wants the disputed shop to be vacated by the defendants. On 11-11-1975, the plaintiffs, by the second amendment, alleged that the tenants of the plaintiffs, namely, Sonpal and Shyamlal vacated two shops and they got vacant possession of the said shops. The shop in possession of Sonpal is adjacent to the shop in dispute and the wall which separates the two shops, the plaintiffs want to remove and by putting a girder only, the plaintiffs want to make two shops, i. e. the disputed shop and the shop which was in possession of Sonpal, as one shop and then plaintiff No. 3 will start the business of cloth which he is doing in the rented premises. The shop in possession of Shyamlal does not open on road and there are shops of sweet-meat makers and as such, that shop is not useful for the plaintiff to carry on the business of selling cloth. The respective shops are shown in the map filed by the plaintiffs along with the plaint. The shop in possession of defendant is shown as the disputed shop. The shop No. 4 was in possession of Sonpal and the rest of the shops are shown in possession of the respective tenants. Shop in possession of Shyamlal is shown by mark c. The disputed shop opens towards Sadak, Sadar Bazar, Morar and also on Sadak, gangamai Santar. Shop A which was in possession of Sonpal Sonar opens towards Sadak Gangamai Santar and has no other opening. The correctness of the map was not disputed before me by the parties. Therefore, I hold that the map submitted along with the plaint shows the correct position of the house and the shops. ( 5. ) THE defence of the defendants is denial of the status of the plaintiffs any their joint family. It is also denied that defendant No. 1 is the Karta or Manager of the family. It is submitted that it is not possible to say as to when the tenancy started as there was no agreement between the plaintiffs and defendants. As to genuine requirement, there was denial by the defendants. It is also denied that defendant No. 1 is the Karta or Manager of the family. It is submitted that it is not possible to say as to when the tenancy started as there was no agreement between the plaintiffs and defendants. As to genuine requirement, there was denial by the defendants. It was admitted that the shops in possession of Sonpal and Shyamlal were vacated, but it was alleged that because of vacation of these shops, the need of the plaintiff No. 3, if any, has come to an end. The motive for filing the suit for eviction is that the plaintiffs wanted to increase the rent and when the defendants did not accept to that request, the present suit is filed to pressurise them. It was also submitted that the defendants tendered rent due to the plaintiffs, but it was not accepted by the plaintiffs and the arrears are now deposited in the Court. On the basis on these allegations, the trial Court framed the following issues (translated in English) :- (i) Whether the defendants are members of a joint Hindu family and defendant No. 1 is the Karta of the family ? (ii) Whether the defendants Nos. 1 and 2 have executed the rent note, the basis of the suit, in favour of the plaintiffs ? (iii) Whether the plaintiffs have a bona fide need (a) for plaintiff No. 3 Radheshyam for carrying on the business of cloth. (b) Whether the plaintiffs have no other reasonably suitable shop in their possession for carrying on the business of plaintiff No. 3 ? (iv) Whether arrears are due towards the defendants at the rate of rs. 25 from 1-11-1970 and whether they have not paid in spite of the demand made on them? Whether the defendants have tendered the rent? (v) Whether the tenancy of the defendants has been validly terminated by the notice dated 17-11-1972 ? (vi) Relief and costs. The trial Court, after taking evidence, came to the conclusion that the defendants are members of the joint Hindu family and Balkishan is the Karta. It held that the execution of the rent-note is not proved, but it is proved that defendants Nos. 1 and 2 are tenants as alleged by the plaintiffs. (vi) Relief and costs. The trial Court, after taking evidence, came to the conclusion that the defendants are members of the joint Hindu family and Balkishan is the Karta. It held that the execution of the rent-note is not proved, but it is proved that defendants Nos. 1 and 2 are tenants as alleged by the plaintiffs. It held that plaintiff No. 3 has a genuine need for carrying the business of cloth and he has no other alternative suitable accommodation in his possession. As to arrears of rent, it has held that the defendants are in arrears of rent since 1-11-1970 at the rate of 25/- and the amount was not paid, nor tendered by the defendants in spite of the demand of arrears made on them. But defendants were given benefit under section 130 of the Act. The tenancy was terminated validly by the notice dated 17-11-1972, and, therefore, the trial court decreed the suit. There was an appeal. The appellate Court has reversed the judgment and decree of the trial Court. The appellate Court held that the plaintiff No. 3 required the disputed shop to open bis business. This finding is given by the learned appellate Court in para No. 12 of the its judgment. The appellate Court held that it is not the case of the plaintiffs that the business has increased and, therefore, they have the need of the disputed shop as well as the shop which is adjacent to the disputed shop and as it is not pleaded, nor it is proved that the business has expanded and as plaintiff No. 3 could do his business in the shop which is vacated by Sonpal, therefore his need cannot be said to be genuine. The trial Court should have taken into consideration all these facts and then should have decided whether the need of plaintiff No. 3 is genuine or not. The learned appellate Court, relying on Damodar v. Nandram, (1960 M P L J 926.), held that the defendant cannot be evicted from the disputed shop. The trial Court should have taken into consideration all these facts and then should have decided whether the need of plaintiff No. 3 is genuine or not. The learned appellate Court, relying on Damodar v. Nandram, (1960 M P L J 926.), held that the defendant cannot be evicted from the disputed shop. It also said that the shop in possession of Sonpal is vacant and adjoining to Sonpals shop, three other shops are also vacant and, therefore, the plaintiff should have proved by evidence that these shops are not useful for carrying the said business and as he has failed to do it, the trial Court was wrong in giving a decree in his favour. The report of the Commissioner also shows that cloth business can be carried in the shops which are vacant and which are in possession of the plaintiffs. Therefore, taking into consideration all the circumstances, the appellate Court has held that the requirement of the plaintiff is not genuine and, therefore, the appeal deserves to be accepted. This is a second appeal against the said judgment and decree. ( 6. ) THE finding regarding genuine requirement is a finding of fact and whether I can go into that finding and disturb it will be the main question in this appeal. This objection was raised by the learned counsel Shri s. D. Sanghi, appearing on behalf of the respondents. He referred to mattulal v. Radhelal, (1974 M P L J 752=1975 J L J 1. ). But, the learned counsel Shri D. K. Katare, appearing on behalf of the appellants, submitted before me that finding of genuine requirement is a mixed question of fact and law. He referred to me to modemlal v. Sain dass, (A I R 1973 S C 585.) and Damdilal v. Parasram, (1976 M P L J 526=1976 J L J 655. ). He also referred to Idol shriji v. Gappulal, (1978 MPLJ 804=1978 J L J 208. ). In Madanlals case (supra), it was held, relying on smt. Soni v. Ruplal Mehra, (Civil Appeal No. 2150 of 1966, decided on 26-9-1969.), as under: ". . . whether on the facts proved the requirement of the landlord is bona fide, within the meaning of section 14 (1) (e) is a finding on a mixed question of facts and law. . . . . . . . . Soni v. Ruplal Mehra, (Civil Appeal No. 2150 of 1966, decided on 26-9-1969.), as under: ". . . whether on the facts proved the requirement of the landlord is bona fide, within the meaning of section 14 (1) (e) is a finding on a mixed question of facts and law. . . . . . . . . " In Damdilals case, it is held : "it is well established that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. " In Radha Nath v. Haripada , (AIR 1971 S C 1049.), it is held as under: "the High Court has pointed out that certain material evidence in the shape of documents was not considered by the first appellate Court and a good deal of assumptions of fact were made. Apart from that on proved and admitted facts it was open to the High Court to find what the nature of the tenancy was. " In Mattulal v. Radhelal (supra), it is held as under :- "it is obvious that the issues whether the landlord required the suit premises for the purpose of starting a new business and if so, whether his requirement was bona fide are both questions of fact. Their determination do not involve the application of legal principles to the facts established in the evidence. The findings of the District Judge on these issues are no doubt inferences from other basic facts, but that does not alter the character of these findings and they remain finding of fact. Such findings of facts cannot be interfered with by the High Court in second appeal unless it was shown that in reaching it, a mistake of law was committed or it was based on no evidence or was such as no reasonable man could reach. " ( 7. ) FROM the rulings cited above, the question of genuine requirement can be considered by this Court if some material evidence has not been considered by the appellate Court. Secondly, there can be interference by this Court if the Court comes to the conclusion that the view taken by the appellate Court is not the view which a reasonable man will take. Thirdly, if the appellate Court has not applied correct principles of law in coming to a finding regarding genuine requirement, then also that finding can be interfered with. Thirdly, if the appellate Court has not applied correct principles of law in coming to a finding regarding genuine requirement, then also that finding can be interfered with. Keeping these points in my mind, 1 will see whether the finding given by the appellate Court can be disturbed or cannot be disturbed in second appeal. Going through the Judgment of the learned appellate Court, i am of the view that the finding given by the trial Court that the plaintiff no. 3 has genuine need of the shop for starting his business is confirmed by the appellate Court. It will be better if I mention the findings given by the appellate Court before proceeding further with the Judgment. The findings given by the appellate Court are that plaintiff No. 3 is doing business of cloth in a rented shop and it is also accepted by the defendant in para No. 6 of his statement. Second finding is that the plaintiff No. 3 has taken the shop on rent to carry on the business of the joint family, that plaintiff No. 3 had a genuine requirement of the disputed shop to open the said business. The Court has also found that Gyan Chand has stated in his statement that a cloth business can be done in a shop admeasuring 10x 10. The shops which are in the possession of the plaintiff and which are marked as A, B, C and D are of equal dismensions and it can be said that their dimension is approximately 10x 10. With these findings, I am to the view that the appellate Court also holds that the plaintiff is doing business in rented shop, that he is in need of a shop to carry on the business he is doing and the plaintiff is a member of a joint Hindu family. Now, I will see why the need has been negatived by the appellate Court. In judging the need of the plaintiff, the learned appellate Court has said that the position existing at the time of filing of the suit will be considered. It will be seen whether the plaintiff is in possession of an alternative accommodation. Now, I will see why the need has been negatived by the appellate Court. In judging the need of the plaintiff, the learned appellate Court has said that the position existing at the time of filing of the suit will be considered. It will be seen whether the plaintiff is in possession of an alternative accommodation. The third point he has considered is that it is not proved objectively by the plaintiff as held in damodar v. Nandram (supra) that the business has increased and to meet the increased need of the business, additional non-residential accommodation is necessary. The shop which is vacated by Sonpal and the other shops are vacant and as the plaintiff has not shown that these shops are not convenient in carrying on the business of cloth, the need of the plaintiff cannot be said to be bona fide. The learned Court also said that the business carried by the plaintiff No. 3 is the business of the joint family, and, therefore, the evidence produced by the plaintiff that he requires the shop in possession of the defendant plus one shop which has been vacated by Sonpal is not proved. It has also said in its judgment in para 19 that the trial Court has not considered whether the shops belong to the joint Hindu family, or they belong to plaintiff No. 3, because this consideration was essential to come to a conclusion whether the alternative accommodation, namely, the shop vacated by Sonpal and the other shops are sufficient to meet the need of the plaintiff No. 3. Lastly, the appellate Court rejected the submission of the plaintiff that for carrying on the cloth business, the situation of the shops which are in possession of the plaintiff is not proper. ( 8. ) NOW, the question before me is that when once the appellate Court has found the need of plaintiff No. 3 to be proved, whether it was justified in not giving a decree in favour of the plaintiffs. In my opinion, the appellate court was wrong in not giving a decree in favour of the plaintiffs. ( 9. ) AS I have said above, there is a concurrent finding to the effect that plaintiff No. 3 has the genuine need for the shop occupied by the defendants. In my opinion, the appellate court was wrong in not giving a decree in favour of the plaintiffs. ( 9. ) AS I have said above, there is a concurrent finding to the effect that plaintiff No. 3 has the genuine need for the shop occupied by the defendants. The appellate Court has confused the idea regarding the joint family, the shops belonging to the joint family and the business carried on by the members constituting the joint family and also the expansion of business of the joint family. If the property belongs to the joint family, then plaintiff No. 3 being the member of the joint family, will become the owner of the shops and also one of the landlords. Therefore, the need of one of the landlords for doing business can be a need under section 12 (1) (f) of the Act for getting vacant possession of the shop belonging to the joint family. Secondly, case of the plaintiffs is not that of expansion of the joint family business. It is a case that a member of the joint Hindu family wants to start an altogether a new business. May be, he wants to start the business in the capacity of his being a member of the joint Hindu family, but, I think, that will not make any difference. His need as a member of a joint Hindu family will not make any material difference if the business he wants to start is a new business. Therefore, the learned appellate Courts finding that as it is a business of joint hindu family, the plaintiffs should have proved that the business has expanded, i cannot accept. It is not the case of the plaintiffs that they are doing business in a shop owned by the joint family. If that would have been the case, then the plaintiffs would have required to prove that the business has expanded, if they wanted decree for additional accommodation. Therefore, in ray opinion, the Court has approached the case from a wrong angle altogether and interpretation put by it on section 12 (1) (f) of the Act also, I cannot accept. If that would have been the case, then the plaintiffs would have required to prove that the business has expanded, if they wanted decree for additional accommodation. Therefore, in ray opinion, the Court has approached the case from a wrong angle altogether and interpretation put by it on section 12 (1) (f) of the Act also, I cannot accept. I may refer here to Babulal v. Keshrichand, (1962 J L J Note 177.), in which it was held as under:- "but granting for a moment that there was no partition between the brothers and that the plaintiff and his two brothers have three concerns which are their joint properties, the question is whether the plaintiff is not entitled to start a new business which belongs exclusively to himself. There is no law which debars one member of a joint family or one partner of a firm from starting a new business. It is no bodys case that the plaintiff has any other non-residential accommodation for starting a separate business. It is also nobodys case that the suit premises purchased by babulal does not belong to him exclusively. The plaintiff is, therefore, clearly entitled to a decree for ejectment under section 4 (h) of the Accommodation Control Act. " Therefore, for negativing the need of the plaintiffs, the consideration that it is a joint family business and, therefore, expansion should have been proved by the plaintiffs, I do not accept and I hold that if a member of a joint hindu family wants to start a new business altogether and if he wants some accommodation, then there is no need for proving that the business has expanded if the plaintiffs want to get a decree in their favour. But, the position will be different if the plaintiff is actually in possession of a shop belonging to the joint Hindu family or of his own. ( 10. ) THE plaint ffs have amended their plaint on 6-10-1975 and the evidence of both the parties was recorded subsequent to this date. But, the position will be different if the plaintiff is actually in possession of a shop belonging to the joint Hindu family or of his own. ( 10. ) THE plaint ffs have amended their plaint on 6-10-1975 and the evidence of both the parties was recorded subsequent to this date. Therefore, the defendants were in full knowledge that the plaintiffs have stated in their plaint that to start the business for plaintiff No. 3, they require the disputed shop and the adjoining shop which is vacated by Sonpal and by removing the wall intervening these two shops, they are going to make one shop and that shop is required for them to do the business. If this is the need of the landlord, then the other shops which are not adjacent to the disputed shop even though they are vacant, they cannot be taken into consideration in deciding need of the plaintiffs. ( 11. ) THERE cannot be any dispute that the will of the landlord should be given due weight and it is the duty of the Court to see that it is not the whim of the landlord that should be respected. Therefore, the question now is what is exactly the need of the plaintiffs. Whether plaintiffs really need two shops to convert them into one shop and use it for the business of plaintiff No. 3, which he is doing in the rented shop To judge this fact, the rent point I will have to consider that how much accommodation he is in possession when he is carrying on the business presently. The plaintiffs have produced the rent-note to show how much portion is in the possession of plaintiff No. 3 in the rented shop. I must mention here that the appellate court has not considered this document at all. I do not see even the mention of this important document in the Judgment of the appellate Court. Therefore, I am of the view that this important evidence has not been taken into consideration by the appellate Court and on this point also, I can interfere in the judgment passed by the learned appellate Court. The document is Ex. P/1. This is a rent note executed by Gyan Chand in favour of laxman Prasad son of Swarup Narayan and Kusumlata wife of Laxman prasad. It is for Rs. 150. The document is Ex. P/1. This is a rent note executed by Gyan Chand in favour of laxman Prasad son of Swarup Narayan and Kusumlata wife of Laxman prasad. It is for Rs. 150. The description of premises given is as under (if translated in English) :- "in tenancy, the portion on the ground floor which consists of a tinshed, then one hall and then one Kotha is inclined. " The fact that under this rent-note, the portion which is mentioned above in possession of the plaintiff No. 3 is not disputed by the defendants. Nor, in cross examination, it was put to the plaintiff for to any witnesses that the accommodation mentioned in the rent note is not in possession of the plaintiff No. 3 where he is carrying his cloth business. Therefore, 1 will have to accept what is mentioned in the rent note as correct. If 1 accept this position, then as a reasonable man, it will be presumed that this much accommodation, plaintiff No. 3 wants if he wants to carry his business in his own shops. There is nothing whimsical in asking by plaintiff No. 3 for at least this much accommodation and to get this much accommodation, he has stated in his plaint by amendment that he will convert the two shops into one by removing the wall intervening between the two shops and then he will carry on his business there. ( 12. ) BY clear cross-examination, Gyan Chand was asked only one question that whether cloth business can be done in a shop which is 10x 10. But, this cross-examination leads the case of the defendant nowhere. It brings out only a half truth. A cloth business can be carried on even in small area than this. But, the real question in controversy is that how much accommodation is necessary for plaintiff No. 3 to carry on his business and for that purpose how much accommodation he has taken on rent. The cross-examination goes no further. A direct question should have been put to the plaintiff that whether the need of plaintiff No. 3 will be satisfied if he get an accommodation of 10x10. By not putting this question, I think a vague answer was solicited by the learned counsel. The cross-examination goes no further. A direct question should have been put to the plaintiff that whether the need of plaintiff No. 3 will be satisfied if he get an accommodation of 10x10. By not putting this question, I think a vague answer was solicited by the learned counsel. There is no dispute, therefore, that for carrying on the business of plaintiff No. 3, minimum requirement is one room and one hall, that is to say the disputed shop plus the shop which has been vacated by Sonpal. The finding of the appellate court that shop measuring 10 x 10 is sufficient for carrying on the business of cloth and as plaintiff is in possession of other shop, he has failed to prove his need, cannot be accepted and I reject it. On the contrary, I find that the plaintiff required at least that much portion in which he is carrying on the cloth business presently and, therefore, a shop admeasuring 10x10 is not sufficient to meet his need, but he also requires and the adjacent shop which is vacated by Sonpal and that need he has proved. The disputed shop faces the main road and, therefore, by adding Sonpals shop to the disputed shop, a shop which is facing road and which is sufficient to meet the need of plaintiff No. 3 will be available to him. The other shops which are with the plaintiffs-their position is not such as to make one big shop out of the two shops which will face the road. This important fact was not considered by the appellate Court and it is not done by it because it ignored the document filed by plaintiff No. 3, which is Ex. P/1- Therefore, as I set aside the finding regarding genuine requirement of the appellate Court and find that the plaintiff has genuine need, I will have to decree the suit of the plaintiffs and will have to set aside the Judgment of the appellate Court. I do so accordingly. ( 13. ) THERE were other submissions made by the learned counsel appearing on behalf of the respondents that it is not clear whether the business the plaintiff No. 3 is doing is a joint family business or a separate business. But, as I have said above, it will not make any difference. I do so accordingly. ( 13. ) THERE were other submissions made by the learned counsel appearing on behalf of the respondents that it is not clear whether the business the plaintiff No. 3 is doing is a joint family business or a separate business. But, as I have said above, it will not make any difference. So also it was submitted before me that plaintiff No. 3 was not doing any business at all and it will be difficult to hold now that all of a sudden he wants to start a new business. That also, I am not willing to accept because it is accepted by the defendant himself that Radheshyam is doing business in cloth. ( 14. ) THE result, therefore, is that the appeal deserves to be allowed and i allow the appeal. As the ground under section 12 (1) (f) of the Act is proved by the plaintiff, the defendant will hand over possession of the disputed shop within two months from today, and the defendant will be entitled for compensation which is granted to him by the trial Court under section 12 (6) of the Act. The appeal is allowed with costs. Counsels fee rs. 200. Appeal allowed.