Shri Uttam Chand And Anr. v. Shri Purushottamdas Ji Patel
1999-10-14
S.P.KHARE
body1999
DigiLaw.ai
JUDGMENT S.P. Khare, J. 1. This is a second appeal under Section 100 C.P.C. Arguments on the question of admission heard. 2. It has been held by the first appellate Court after reversal of the decree of the trial Court that the suit accommodation is not required bonafide by the plaintiff No. 2 for the purpose of starting the business "in general goods" of his son Lalchand (P.W. 2) and he has reasonably suitable non-residential accommodation of his own in his occupation in the city for this purpose. It is an admitted fact that during the pendency of the appeal the plaintiffs have got actual possession of an accommodation just behind the shop from which the defendant is sought to be evicted. That alternative accommodation in possession of the plaintiffs consists of two big halls and two rooms. There are two openings on the main road from that accommodation. The width of those openings is less than the width of the shop in possession of the defendant. In the original plaint the plaintiffs did not disclose the nature of the business which Lalchand (P.W. 2) wanted to carry on in the suit accommodation. At the time of the evidence it was specifically stated by Lalchand (P.W. 2) that he wants to carry on the business "in general goods". He had further clarified in cross-examination that he wants to carry on the whole-sale business in tea leaves and sugar in the suit accommodation. After remand of the case Lalchand (P.W. 2) shifted his stand and came forward with the plea that he wants to carry on retail business. He is intelligent enough to realise that the accommodation which has now become available is suitable for carrying on whole-sale business in tea leaves and sugar. Therefore, now he is pressing for his need to carry on the retail business. The suit accommodation is facing the main road and therefore he wants to show that this would be more suitable for the retail shop. 3. The first appellate Court has dealt with the entire documentary and oral evidence on record and after its proper appreciation and threadbare discussion has held that the alternative accommodation available with the plaintiffs is reasonably suitable for the business which Lalchand (P.W. 2) wants to carry on. There is no perversity in the approach of the first appellate Court.
3. The first appellate Court has dealt with the entire documentary and oral evidence on record and after its proper appreciation and threadbare discussion has held that the alternative accommodation available with the plaintiffs is reasonably suitable for the business which Lalchand (P.W. 2) wants to carry on. There is no perversity in the approach of the first appellate Court. The finding which has been arrived at is just and reasonable. Therefore, no substantial question of law is involved in this second appeal. 4. It is argued on behalf of the appellants that the landlord is sole judge in which shop belonging to him he should carry on his business and he cannot be dictated by the tenant that he should do his business in the accommodation which is behind the shop of the tenant. It is well settled that the landlord in such a case has to establish objectively that the alternative accommodation is not sufficient for his business. The landlord does not have an unfettered right in this respect. That is subject to scrutiny by the Court on the touch-stone of "reasonableness". There has to be the balancing of the conflicting interests of the landlord and the tenant. The Court has to perform the task of 'social engineering' while considering the rival contentions. On the one hand the accommodation should be made available to the landlord to satisfy his intense 'need and on the other the protection afforded to the tenant by a socially beneficient legislation should not become illusory. The performance of this task is really delicate. The Supreme Court has recently remarked in Rahabhar v. Rajendra, AIR 1998 SC 1639 that the Courts are under a legal compulsion to harmoniously read the provisions of the Act so as to balance the right of the landlord and the obligations of the tenant. It has also been held that "bonafide need" should be genuine, honest and conceived in good faith. Landlord's desire for possession, however honest it might otherwise be, has inevitably a subjective element in it. The "desire" to become "requirement" must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down. Such possession can be recovered by the landlord only for real, genuine and bonafide need and not for "feigned" need.
The "desire" to become "requirement" must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down. Such possession can be recovered by the landlord only for real, genuine and bonafide need and not for "feigned" need. It is again said in S.J. Ebenezer v. Velayudhan, AIR 1998 S.C. 746 that the alleged need should not be only a ruse to evict the tenant. In the present case the first appellate Court has taken all the aspects into consideration and held that the alternative accommodation which is available with the plaintiffs is reasonably suitable for the business need of Lalchand (P.W. 2). There can be no interference with such a finding of fact by this Court. (Dnyanoba v. Maroti, (1999) 2 SCC 471 and Ram Prasad v. Nand Kumar, AIR 1998 SC 2730 ). 5. This second appeal is dismissed in limine.