Ladu Lal v. Kalu Ram — 1991 DIGILAW 125 (RAJ)

JUDGMENT : 1. This second appeal has been filed against the judgment of the learned Civil Judge, Bhilwara dated September 26, 1983 by which he has allowed the plaintiff-landlord's appeal and has reversed the judgment of the learned Munsif, Bhilwara dated November 5, 1979, dismissing the plaintiff-respondent's suit for recovery of arrears of rent and ejectment. The facts of the case may be summarised thus. 2. On December 13, 1973, the plaintiff-respondent filed a suit for the recovery of arrears of rent and ejectment on the grounds of default in payment of rent, reasonable and bonafide necessity and sub-letting with the allegations, in short, that the suit shop situated in Factory Area Bhilwara was let out to the defendant on monthly rent of Rs. 65/-, it was subsequently enhanced to Rs. 90/-, he has defaulted in payment of rent of Rs. 720/- and it is reasonably and bonafide required for his son Kanhaiyalal. By amendment of the plaint averments that the front portion of the demised shop has been sub-let to watch repairer Khubiram Sindhi have been added. The defendant admits in his written statement that he is in occupation and possession of the suit shop as a tenant of the plaintiff and he duly received the notice of ejectment. The remaining allegations of the plaint have been traversed. It has further been averred that the plaintiff's son Kanhaiyalal brings milk from his village Kodia to the town of Bhilwara and sells there besides doing agriculture in the village. After framing necessary issues and recording the evidence of the parties, the learned munsif held that the monthly rent was not enhanced from Rs. 65/- to Rs. 90/-, the defendant has not committed default in payment of rent, the suit shop has not been sub-let and it is not required for Kanhaiyalal reasonably and bonafide and accordingly dismissed the suit by his judgment dated November 5, 1979. The plaintiff preferred appeal and it was allowed by the learned Civil Judge, Bhilwara by his Judgment dated September 26, 1983 reversing all the findings relating to the said grounds of ejectment. 3. The appeal was admitted on November 25, 1983 with the following substantial questions of law :1. Whether the learned first appellate Court has misread the statement of Kanhaiyalal in holding that the plaintiff had reasonable and personal bonafide necessity of the suit premises ?2. 3. The appeal was admitted on November 25, 1983 with the following substantial questions of law :1. Whether the learned first appellate Court has misread the statement of Kanhaiyalal in holding that the plaintiff had reasonable and personal bonafide necessity of the suit premises ?2. Whether the Court below has failed to consider the question of partial ejectment ? 3. Whether sharing of the premises with a third person would amount to parting with the possession ?By order dated September 11, 1984 the learned Munsif, Bhilwara was directed to enquire into the question of feasibility of partial eviction and to submit his findings. After recording the evidence of the parties which was produced before him, the learned Munsif has returned the record with his finding that the partial eviction is not feasible. 4. It has been contended by the learned counsel for the defendant-appellant that the necessary ingredients of clauses (e) and (h) of sub-section (1) of Section 13 and sub-section (2) of Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, are not spelt out from the averments made in the plaint and as such the plaint deserves to be rejected under Order 7 Rule 11, CPC and in the alternative, he also contended that no evidence can be looked into on the issue of reasonable and bonafide necessity, comparative hardship and sub-letting for want of necessary pleadings. He relied upon Onkarnath v. Vaid Vyas; Hasmat Rai v. Raghunath Prasad, 1982 (1) RCJ 499; Dr. Mrs. N.D. Khanna v. M/s. Hindustan Industrial Corporation, AIR 1981 Delhi 305; Abdul Hamid v. Noor Mohd., Banke Ram v. Smt. Sarasti Devi, Edwin Brarve v. Hari Chand, 1982 (21) DLT 209 ; R.K. Trikha v. Kishan Chand, 1983 (23) DLT 268 ; Jodh Ram v. Suleman, 1970 RLW 170; Birdhi Chand v. Ram Prashad, Smt. Radhey Piari v. S. Kalyan Singh, AIR 1959 Punjab 508; Amir Ahmed v. Yusuf, 1985 RLR 718 and M/s. Delhi Stationers and Printers v. Rajendra Kumar, AIR 1970 SC 1209. He also contended that nature of business which the plaintiff's son Kanhaiylal wants to start in the suit shop has not been disclosed and on this ground alone the appeal deserves to be allowed and suit deserves to be dismissed. He also contended that nature of business which the plaintiff's son Kanhaiylal wants to start in the suit shop has not been disclosed and on this ground alone the appeal deserves to be allowed and suit deserves to be dismissed. In the alternative, he contended that the matter be referred to the larger Bench as in Jodhraj v. Suleman (supra) and Birdhi Chand v. Ram Prasad (supra) it has been held that it is necessary for the plaintiff to disclose the nature of business which is to be started in the suit shop but it has been held in Dr. Salig Ram v. Sagar Chand, AIR 1983 Raj. 176 , that it is not so. He also contended that the plaintiff's son has stopped selling milk, he is now Sarpanch of the village, he is doing the business of motor parts and repairing electric motors and he is also operating mines. He lastly contended that the findings of the trial Court regarding partial eviction are against record and perverse. 5. In reply, it was contended by the learned counsel for the plaintiff-respondent that the findings regarding reasonable and bonafide need, comparative hardship and partial eviction are findings of fact and not open to challenge in second appeal. He relied upon Pal Singh v. Sunder Singh, AIR 1989 SC 758 ; Bhairab Chand Nandan v. Randhir Chandra Dutta; Narain Lal v. Nanalal and others, 1978 RLN (UC) 232. He also contended that the suit has been filed in the year 1973, during this period the plaintiff's son Kanhaiyalal was not supposed to sit idle and not do any other business or engage himself to augment his income to meet the expenditure of his expanding family and from this fact it cannot be said that his need for the suit shop has ceased to exist. He further contended that the parties were well aware from the very beginning that the suit shop is required by the plaintiff's son Kanhaiyalal for carrying on his business of milk. He also contended that the appeal has been admitted on the aforesaid three substantial questions and there exist no good reason for hearing the appeal on other points. Finding on partial eviction has been given after thorough scrutiny of the evidence on record and it does not suffer from any infirmity. He also contended that the appeal has been admitted on the aforesaid three substantial questions and there exist no good reason for hearing the appeal on other points. Finding on partial eviction has been given after thorough scrutiny of the evidence on record and it does not suffer from any infirmity. He lastly contended that the case does not also involve the aforesaid substantial questions of law.Question No. 1 : 6. The plaintiff Kalu Ram PW 1 has stated in his examination-in-chief dated January 4, 1975 that the suit shop is required for his son Kanhaiyalal who carries on the business of milk and other son Jagdish who is doing nothing and he does not want to increase the rent of the suit shop. In his cross-examination dated January 12, 1975, he disclosed that the age of Kanhaiyalal is 22-23 years and about six months ago he has taken a shop in Bala locality for carrying on his milk business. In the end of his cross-examination, he reiterated that the suit shop is required by his son for selling milk. In his cross-examination dated May 16, 1978, he admitted that his son Kanhaiyalal has opened a shop for carrying on the business of motor parts and repairing motors. He also disclosed in it that he still carries on his old business of selling milk and it would be continued. Kanhaiyalal PW 4 was examined on February 2, 1975. He has stated that the suit shop is required for carrying on his business of milk and at present he carries it in a shop situated at Bala which has been taken on rent from its owner Khyali Lal Mahajan. In his cross-examination he stated that it is not correct that the suit shop was vacant when he started his business of milk. There is nothing in his statement which may go to show that his need for the suit shop for his business of milk it is not genuine. 7. It is admitted in para 16 of the written statement by the defendant that the plaintiff's son Kanhaiyalal brings milk from village Kodia and supplies it in Bhilwara town. He has also said so in his statement on oath dated January 4, 1974. He also admits in his statement that the room which exists over the suit shop is in possession and occupation of the plaintiff. He has also said so in his statement on oath dated January 4, 1974. He also admits in his statement that the room which exists over the suit shop is in possession and occupation of the plaintiff. Much emphasis has been put by the learned counsel for the defendant-appellant on the point that it has simply been stated in the plaint that the suit shop is required for plaintiff's son Kanhaiyalal for sitting, the nature of the business which is intended to be carried on there has not been disclosed and as such it cannot be said that his need is reasonable and bonafide. There is no force in this contention. Before instituting the suit, the plaintiff served ejectment notice Ex. 2 dated November 8, 1983 upon the defendant stating that he is in dire need of the suit shop for his son Kanhaiyalal who carries on milk business. The defendant sent his reply Ex. A. 21 dated December 1, 1973 stating that it is totally incorrect that the demised shop is required for Kanhaiyalal and it is not possible for him (Kanhaiyalal) to sit in the demised shop as he does agriculture in the village and sells milk in Bhilwara town after bringing it from the village. In the plaint, it has been repeatedly said that the suit shop is required for his son Kanhaiyalal. It is correct that it has been specifically averred in it that it is needed by Kanhaiyalal for his milk business. If the plaint is read in the light of the said notice Ex. P/2 and the reply Ex. A.21 it becomes clear that the suit shop is required by Kanhaiyalal for carrying on his business of milk. The disclosure of the nature of business in the plaint is insisted upon to correctly ascertain reasonableness and bonafides of the need and the defendant-tenant is not taken by surprise. Neither any provision of the Code of Civil Procedure nor any provision of the Act requires such a disclosure. In this case, the plaintiff disclosed in his notice Ex. 2 that the suit shop is required for his son for carrying on his milk business. Neither any provision of the Code of Civil Procedure nor any provision of the Act requires such a disclosure. In this case, the plaintiff disclosed in his notice Ex. 2 that the suit shop is required for his son for carrying on his milk business. If it would have been required for the sitting purpose only, as has been contended by the learned counsel for the defendant, the defendant could well say that the plaintiff's son Kanhaiyalal can very well sit in his room which exists over the suit shop. Admittedly, this has been not at all been said either in the written statement or in his statement on oath by the defendant. The plaint is not to be read in a very hyper technical or pedantic manner. It was filed in the year 1973 when the law of ejectment on the ground enumerated in Section 13 of the Act was in its developing stage in Rajasthan. 8. It is well proved from the evidence on record that plaintiff's son Kanhaiyalal has taken a shop on rent from its owner Khyali Ram Mahajan for carrying on his business of milk. This fact alone shows that Kanhaiyalal genuinely needs a shop for carrying on his business of milk. If the business of milk would not have required a shop, he would not have taken the shop of Khyali Ram Mahajan on rent. 9. It is correct that it has come on record that the plaintiff's Kanhaiyalal has also started the business of motor parts and repairing electric motors. In this Court, the defendant-appellant has produced certain documents to prove that Kanhaiyalal has taken mining lease and has got himself registered under the Rajasthan Sales Tax Act and Central Sales Tax Act. This fact has seriously been challenged by the plaintiff. His case is that mining lease was taken for extracting stone slabs for constructing a building and not for carrying on business of mining products. It is not the case of the defendant-appellant that the old business of milk has been abandoned by Kanhaiyalal. It has been stated in para No. 10 of the grounds of appeal, "It is further clear on record that the milk is now supplied to dairy which does not require any shop for the sale". In ground No. 7 of his objections against the findings regarding partial eviction, he has stated "the milk business.... It has been stated in para No. 10 of the grounds of appeal, "It is further clear on record that the milk is now supplied to dairy which does not require any shop for the sale". In ground No. 7 of his objections against the findings regarding partial eviction, he has stated "the milk business.... which he is doing without any problem as at present....." The suit was filed in the year 1973 and it is being hotly contested by the defendant. Various applications were moved by him. Seeing the snail's progress of the suit, if Kanhaiyalal has started other business to augment his income, it cannot be said that his need for the suit shop for running his business of milk has ceased to exist. Uncertainties of litigation are proverbial. It has been observed in famous case of Mst. Bega Begum and others v. Abdul Ahmad Khan, as follows : "It seems to us that the connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word 'requirement' and pointed out that it merely connotes that there should be an element of need." Section 15 of the Act runs as under : "15. Restoration of possession to evicted tenant. This Court has considered the import of the word 'requirement' and pointed out that it merely connotes that there should be an element of need." Section 15 of the Act runs as under : "15. Restoration of possession to evicted tenant. - Where a decree for eviction of any premises has been passed by the Court against a tenant on any of the grounds specified in clause (h) of sub-section (1) of Section 13 and the landlord fails to utilise the premises the use or purpose for which such eviction shall have been decreed within two months of obtaining possession thereof, or, in the case of premises let out for residential purposes, at any time within one year and in the case of premises let out for commercial or business purposes, at any time within five years of obtaining possession lets the whole or any part thereof to any person than the evicted tenant, the Court which passed the decree may, on the application of the evicted tenant place him in possession of the premises." The defendant may move an application for placing him in possession of the suit shop if the plaintiff fails to utilise it for the milk business of his son Kanhaiyalal within two months of obtaining its possession or lets it out within five years thereof. In view of these facts and circumstances, it cannot be said that the first appellate Court has misread the statement of Kanhaiyalal in holding that his need is reasonable and bonafide and the case needs reference to larger Bench. There does not also exist any ground for the rejection of the plaint under Order 7 Rule 11, CPC. 10. Question No. 2 :By order dated September 11, 1984, this Court directed the trial Court to inquire into the question of feasibility of partial eviction and submit its findings. On this point the trial Court recorded the evidence of the parties and heard them. By its order dated April 10, 1985, the learned Munsif has held that the division of the suit shop is not feasible and the back portion of it would not be sufficient for the said business of milk and has accordingly answered this question in favour of the plaintiff-respondent. 11. According to the site plan Ex. A/3 filed by the defendant himself, the dimensions of the suit shop are 30' x 10'-3". 11. According to the site plan Ex. A/3 filed by the defendant himself, the dimensions of the suit shop are 30' x 10'-3". It consists of three portions shown by A, B and C i.e. back portion 10' x 8'-9", main portion 10' x 9" and verandah 10' x 8'. Admittedly, there is no shutter in the verandah towards the road. The back portion also consists of the stair-case leading to the room situated on the first floor. As such the space of the back portion is substantially reduced by this stair-case. The defendant's case is that the plaintiff's son Kanhaiyalal can conveniently carry on his milk business in this back portion of the shop approachable from the land existing on the back side of the shop by putting a wall at the place where the main shop and this back portion meets and by opening a door towards the lane. It is not his case that he can carry on his business on this back portion of the suit shop. After careful scrutiny and thorough discussion of the evidence on the record the learned Munsif has rightly came to the conclusion that the plaintiff's son Kanhaiyalal would not be able to carry on his business of milk in this back portion on the suit shop which has been shown by 'A' in the site plan Ex. A.3. He has observed that this portion is not sufficient to keep canes, drums, kadhai, utensils, refrigerator, tables, chairs, firewood, crockery and also for kiln. The defendant and his witness Prakash Chand DW6 admit in their statement on oath that these articles and things are necessary for running the milk business. The learned Munsif has rightly observed that the back portion of the shop would not attract customers as its frontage would be towards the lane and not towards main road and the plaintiff's son Kanhaiyalal would not be able to expand his business in future. The defendant has examined Manak Mal DW9 who carries on milk business in a shop measuring 20' x 6' and he admits that the crowd remain standing outside his shop and he does not have refrigerator, crockery, tables and chairs in his shop. It is correct that the defendant would be put to inconvenience due to his total eviction from the suit shop. It is correct that the defendant would be put to inconvenience due to his total eviction from the suit shop. It has come in evidence that many new shops were constructed in the town of Bhilwara during this period. There is nothing on the record to indicate that the defendant made any effort to take any of these newly constructed shops on rent. It has also come on record that some of these shops are still lying vacant. The defendant can shift his business to any of these shops. It has been observed in Mst. Bega Begum and others v. Abdul Ahad Khan, AIR 1979 SC 272 at page 278 para 19, as follows:- "It is not doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed and was fully in contemplation of the legislature when Section 11(1)(h) of the Act was introduced in the Act. This by itself would not a valid ground for refusing the plaintiffs a decree for eviction." The partial eviction of the suit shop is not feasible. 12. Question No. 3 :In the amended plaint dated March 10, 1977, the plaintiff has averred that the defendant has sub-let front portion of the suit shop to the Watch Repairer Khubi Ram Sindhi, he is sitting on the suit shop with his cabin and the photo taken on January 17, 1977 clearly shows the cabin and Khubi Ram Sindhi. In his amended written-statement, paper No. A/28, the defendant has traversed all these averments. He has further averred that he is not responsible for the persons who sit on the footpath, everyday the Municipal Council, Bhilwara remove them therefrom and no photo was taken on January 17, 1977. Issue No. 8 was framed on these pleadings and parties led evidence. The trial Court held that the plaintiff has failed to prove that the defendant has sub-let a part of the demised shop. This finding was reversed by the first appellate Court and it has categorically held that the plaintiff has been successful to prove that the defendant gave possession of a portion of the demised shop to the Watch Repairer Khubi Ram Sindhi and this part was in his sub-tenancy. 13. This finding was reversed by the first appellate Court and it has categorically held that the plaintiff has been successful to prove that the defendant gave possession of a portion of the demised shop to the Watch Repairer Khubi Ram Sindhi and this part was in his sub-tenancy. 13. As already observed above, the suit shop consists of three portions i.e. covered verandah, main shop and back portion. The defendant Ladulal DW1 admits that the photo Ex. 4 is not of his shop. This photo Ex. 4 clearly shows a cabin on the footpath just annexed to the suit shop and man is sitting just close to this cabin inside the verandah of the suit shop. The photo Ex. 4 further shows that it was taken when the suit shop was open. It supports the plaintiff's version that a part of the front portion of the shop has been given to a Watch Repairer and does not at all support the defendant's version that the Watch Repairers sits on the footpath belonging to the Municipal Council, Bhilwara. The learned Appellate Court has rightly held that it is well proved from the evidence on record that the possession of a part of the verandah of the suit shop was given to Khubi Ram Sindhi by the defendant for some months without the permission of the plaintiff. 14. Now the question is whether this Act of the defendant attracted the provisions of clause (e) of sub-section (1) of Section 13 of the Act. It would be best to quote this clause here. It runs as under:- "(e) that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord." It is the admitted case of the defendant-appellant that the verandah is included in his tenancy vide site plan Ex. A/3. No shutter is fitted on the front portion of this verandah i.e. towards the road. As already observed above, it is well proved from the evidence on record that the Watch Repairer Khubi Ram kept his cabin on the footpath and he himself sat on a part of the front portion of the said verandah and carried on his business of watch repairing there. As already observed above, it is well proved from the evidence on record that the Watch Repairer Khubi Ram kept his cabin on the footpath and he himself sat on a part of the front portion of the said verandah and carried on his business of watch repairing there. It is not the case of the defendant that he permitted the Watch Repairer Khubi Ram to sit on a part of the suit shop with the permission of the plaintiff-respondent. At least that portion of the verandah came in exclusive possession of the Watch Repairer which was required by him for his use and occupation and during this period this portion of the verandah ceased to remain in possession and occupation of the defendant-appellant. It is thus clear that the defendant-appellant parted with the possession of a portion of the demised shop without the permission of the plaintiff-landlord. The above quoted clause was fully attracted in this case. Under these facts and circumstances, the sharing of the demised shop with a third person amounts to parting with the possession. This question is accordingly answered in favour of the plaintiff-respondent. Thus the appeal deserves to be dismissed with costs. 15. Consequently, the appeal is dismissed with costs. The judgment and decree of the learned Civil Judge, Bhilwara dated September 26, 1983 are affirmed. The defendant-appellant is given time upto March 31, 1991 to deliver the actual and physical possession of the suit shop to the plaintiff provided he remits by Money Order within two weeks from today the entire arrears of rent and mesne profits upto March 31, 1991 and costs of the suit and appeals and gives an undertaking in writing before the learned Munsif, Bhilwara that he will not part with the possession of the suit shop during this period and will hand over its actual and physical possession to the plaintiff before or by April, 1991.Appeal dismissed.