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2000 DIGILAW 1405 (RAJ)

Ganesh Lal v. Sunil Kumar

2000-11-28

N.P.GUPTA

body2000
JUDGMENT 1. - Heard learned counsel for the parties. 2. I have perused the judgments of the two learned courts below and have also been taken through the entire statements of the witnesses examined on side of the plaintiff. The learned lower appellate court by reversing the findings of the learned trial court on the issue Nos. 1 and 2 regarding reasonable and bona fide necessity and comparative hardship between the parties, has decreed the suit for eviction from the suit shop. The suit shop is a very small shop measuring approximately 5ft x 4ft only. 3. True it is that the learned lower appellate court has not met with each and every reasoning given by the learned trial court with mathematical precision and has rather appreciated the evidence on its own and has come to the conclusion that the plaintiff has established that the plaintiff does require the premises bonafidely and reasonably and that the element of comparative hardship is also in favour of the plaintiff 4. The main contention of the learned counsel for the appellant is that the learned lower appellate court could not have reversed the findings of the learned trial court without meeting each and every reasoning given by the learned trial court and without recording the finding that the findings recorded by the learned trial court are not supported by evidence. In this view of the matter, I have gone through the evidence of the plaintiff and am satisfied that the learned lower appellate court was correct in reversing the findings of the learned trial court on both the issue Nos. 1 & 2. The learned lower appellate court has already catalogued the consistent and latest judgments of Hon'ble the Supreme Court laying down the parameters required to be considered for deciding the question of reasonable and bona fide necessity so also the comparative hardship and, thereafter, has discussed the evidence of the parties and has rightly come to the conclusion on issue Nos. 1 and 2. 5. It was then contended by the learned counsel for the appellant that during pendency of the appeal before the learned lower appellate court, the plaintiff's father Chand Mal had expired with the result that the plaintiff succeeded to the business and properties of his father also and, therefore, on that account, the alleged reasonable and bona fide necessity no more survive. Suffice it to say that the learned lower appellate court has already taken note of fact that Chand Mal had expired during the pendency of the appeal. It has clearly come on record in the evidence of various witnesses of the plaintiff that Chand Mal was carrying on business in one shop, while the other sons were carrying on different business in different premises though they were living in the same building in Kumawatpura. However, as per the version of Chand Mal, all the sons were living separately except one only who is living with Chand Mal. 6. In my view, in the totality of the circumstances, it cannot be said that on account of death of Chand Mal any particular commercial apartment or any particular running business fell to the share of the plaintiff so as to enable me to conclude that the reasonable and bonafide necessity of the plaintiff came to an end. Thus, this aspect also does not effect the appellant favourably. 7. Thus the findings recorded on the two issues are not vitiated on any of the grounds available under Section 100 C.PC. the present appeal, therefore, does not involve any substantial question of law and is, therefore, dismissed summarily. 8. At the request of the learned counsel for the appellant, the appellant is given twelve months' time to vacate the suit premises on the condition that the defendant gives an undertaking before the learned trial court within one month from today that on or before the expiry of the above period, he will peacefully hand over the vacant possession of the suit premises to the plaintiff and that during this period, he will not, in any manner, transfer the possession of the suit premises to anybody. Likewise, the entire decretal amount, so also all arrears of rent, if any, shall be deposited by the appellant in the trial court within one month from today and further amount equal to the monthly rent shall continue to be deposited by way of damages for use and occupation by 15th of each succeeding month, till the actual delivery of possession. In case the appellant fails to comply with any of the above conditions, the respondent will to become automatically entitled to execute the decree forthwith.Order accordingly. *******