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2004 DIGILAW 1124 (RAJ)

Life Insurance Corporation of India v. Abhay Kumar Bhandia (Deceased)

2004-08-05

A.C.GOYAL

body2004
Honble GOYAL, J.–This first appeal has been preferred by the defendants against the judgment and decree of eviction dated 4.5.2001 passed by learned Additional District Judge No. 3, Jaipur City, Jaipur. (2). The relevant facts in brief are that the plaintiffs/respondents filed a civil suit for arrears of rent and eviction on 3.12.1980 with the averments that the suit house No. L-5-A situated at Prithvi Raj Road, Jaipur was let-out to the defendants at monthly rent of Rs. 11,500/- in the year 1976. Thereafter, first floor, second floor and 1/3rd portion of the basement was vacated by the defendants. The remaining portion of the basement and the ground floor is with the defendants. The defendants have got a huge building at Bhawani Singh Marg, Jaipur and the plaintiffs require the remaining premises for their printing and stationary business which is being carried out in rented premises presently. This requirement is reasonable and bonafide. The defendants have got suitable alternative accommodation. They have made material alterations without the permission of the plaintiffs. A prayer was also made for fixation of standard rent for the portion in occupation of the defendants. (3). Vide amended plaint, it was pleaded that in addition to requirement to carry on their business the suit premises are required for residential use of the plaintiffs. The plaintiffs No. 3 to 5 Jay Kumar, Nirmal Kumar and Naveen Kumar are residing separately in rented premises. (4). The defendants vide their written statement having admitted the tenancy denied all the grounds of eviction with a plea that the requirement is not reasonable and bonafide as the plaintiffs further let-out the first and second floor to the State Bank of India after vacating by the defendants. (5). On the basis of the pleadings issues were framed. Evidence of the parties was recorded. Having heard learned counsel for the parties learned Additional District Judge No. 3, Jaipur City, Jaipur held that the plaintiffs have proved their requirement to be reasonable and bonafide and that the comparative hardship would be caused to the plaintiffs in comparison to the defendant and partial eviction would not serve the purpose of either party and thus decreed the suit for eviction. The Trial Court further allowed the prayer for fixation of standard rent at the rate of Rs. 7500/- per month. (6). I have heard learned counsel for the parties. The Trial Court further allowed the prayer for fixation of standard rent at the rate of Rs. 7500/- per month. (6). I have heard learned counsel for the parties. Following points arise for determination in this appeal :- (i) Whether the findings of the Trial Court on the issues of requirement, comparative hardship and partial eviction are justified ? (ii) Whether fixation of standard rent at monthly rate of Rs. 7500/- is justified ? (7). First Point:- A brief description of the pleadings of the parties has already been given. Now the evidence has to be looked into. P.W.1 Nirmal Kumar-the plaintiff stated that in the beginning ground floor along with the basement was let-out to the defendants. Thereafter, first and second floor were also let-out on 7.7.1976. Total monthly rent agreed upon was Rs. 11,500/-. The defendants vacated first and second floor and 2/3rd portion of the basement in the year 1979 as the defendants had got constructed their own building. Thereafter, the first and second floor were let-out to the State Bank of India on monthly rent of Rs. 15,000/-. (8). These facts as mentioned hereinabove are not in dispute. It is also not in dispute that the State Bank of India also vacated the first and second floor in May, 1996 and this portion of first and second floor is still lying vacant with the plaintiffs. (9). P.W.1 Nirmal Kumar further stated that all the three brothers including himself are residing in rented premises. It was also stated that the premises wherein they were carrying on printing and stationery business has already been got vacated by the landlord. It was also stated by him that they will set up their business in the basement and after getting the vacant possession of the ground floor from the defendants all the three brothers would divide the entire house among them for their residence and they have no other premises at Jaipur while the defendants have got a number of other premises at Jaipur. P.W.1 has given the details of the alternative accommodation available with the defendants. P.W.2 Jay Kumar and P.W.3 Navin Kumar both the plaintiffs have supported the statement of P.W.1 Nirmal Kumar. P.W.4 Smt. Rinu is the wife of P.W.3 Navin Kumar. The statement of P.W.5 Krishna Swaroop was recorded on 3.2.1997. P.W.1 has given the details of the alternative accommodation available with the defendants. P.W.2 Jay Kumar and P.W.3 Navin Kumar both the plaintiffs have supported the statement of P.W.1 Nirmal Kumar. P.W.4 Smt. Rinu is the wife of P.W.3 Navin Kumar. The statement of P.W.5 Krishna Swaroop was recorded on 3.2.1997. According to his statement, the plaintiff Jay Kumar is his tenant for last six years on monthly rent of Rs. 3,500/-. The statement of P.W.6 Rajendra Kumar was recorded on 3.2.1997. He stated that all the three plaintiffs Jay Kumar, Navin Kumar and Nirmal Kumar are residing in rented premises. D.W.1 Sh. R.P. Pahwa and D.W.2 Ramesh Chand have made a general denial on the question of reasonable and bonafide requirement of the plaintiffs. (10). The Trial Court having discussed the entire evidence came to this conclusion that all the three plaintiffs Jay Kumar, Navin Kumar and Nirmal Kumar are residing in rented premises and the landlord of the plaintiff Navin Kumar has already instituted a suit for eviction which has been proved by P.W.4 Smt. Rinu. P.W.5 has also supported the statement of Jay Kumar that Sh. Jay Kumar is his tenant. It was also found proved by the Trial Court that the premises wherein the plaintiffs were carrying on their business have now got been vacated by the landlord and there is no evidence in rebuttal and thus the requirement for the basement as well as first floor was found to be reasonable and bonafide. (11). Learned counsel for the appellants contended that the plaintiffs can set up their business in 2/3rd portion of the basement which was vacated by the defendants and all the three plaintiffs may reside in first and second floor already vacated in the year 1996 by the State Bank of India. It was also submitted that the Trial Court wrongly placed reliance upon this evidence of the plaintiffs that they would reside in the suit premises only after partition among them as there was no such plea. Reliance has been placed upon Maqboolunnisa vs. Mohd. Saleha Quaraishi (1). It was also contended that in the original suit the only requirement pleaded was that the premises are required to carry on their business while vide amended plant, a contradictory plea was taken that the suit premises are required for their residence. Reliance has been placed upon Maqboolunnisa vs. Mohd. Saleha Quaraishi (1). It was also contended that in the original suit the only requirement pleaded was that the premises are required to carry on their business while vide amended plant, a contradictory plea was taken that the suit premises are required for their residence. It was also submitted that alternative accommodation available with the defendants-appellants is no ground to pass the decree of eviction as the appellants have no alternative accommodation in the area where the office of the appellants is going on in the suit premises for the convenience of the public and it is a case of mere desire of the plaintiffs and not a case of reasonable and bonafide requirement. Reliance has also been placed upon T. Sivasubramaniam vs. Kasinath Pujari (2), Sachida Nand Prasad vs. Smt. Savitri Sahay (3), Umesh Kumar Verma vs. Chandrika Pd. Singh (4). Learned counsel for the appellants on the above submissions contended that the issue of comparative hardship has also wrongly been decided against the defendants. However, the finding on the question of partial eviction was not disputed. (12). Per contra, learned counsel for the respondents while referring the contents of the application under Order 41 Rule 27 C.P.C. contended that the findings of the Trial Court are based upon proper appreciation of the evidence and there is no ground to interfere with the said findings. It was also contended that the plaintiffs wanted to bring on record the facts relating to partition of the property in between three brothers by way of an application under Order 6 Rule 17 C.P.C. but the same was opposed by the defendants, hence the Trial Court rejected that application. It was also contended that it is an internal matter between all the three plaintiffs-brothers as to how and what portion each of them would occupy and on this count the findings of the Trial Court cannot be set aside. (13). I have considered the rival submissions. It was also contended that it is an internal matter between all the three plaintiffs-brothers as to how and what portion each of them would occupy and on this count the findings of the Trial Court cannot be set aside. (13). I have considered the rival submissions. The Trial Court on proper appreciation of the entire evidence came to this conclusion and rightly so that three plaintiffs Jay Kumar, Navin Kumar and Nirmal Kumar are residing separately in rented premises and the premises occupied by them for their business has already been got vacated by its landlord and therefore, the entire basement is required by the plaintiffs to set up their business while the ground floor is required by all these three brothers for their residence. The evidence adduced on behalf of the plaintiffs that they would occupy the ground, first and second floor after getting the ground floor vacated is only a piece of evidence not required to be pleaded in the plaint and thus the judgment of the Honble Supreme Court delivered in Maqboolunnisas case (supra), is not applicable in the instant case. In view of the other judgments relied upon by learned counsel for the appellants it is settled legal position that a decree of eviction cannot be passed upon mere desire of the landlord, rather the landlord has to prove his requirement to be reasonable and bonafide. In the instant case, the Trial Court having considered the entire material evidence has rightly came to this conclusion that the requirement of the plaintiffs is both reasonable and bonafide. (14). As far as the question of comparative hardship is concerned, it is suffice to say that the contents of the application under Order 41 Rule 27 C.P.C. have not been denied in reply filed by the appellants. Vide this application the respondents-plaintiffs have placed on record Annexures R1 to R6. These are the advertisements published in the newspapers from time to time on behalf of the defendants-appellants to let-out their own building on rent. Some of these documents were already placed on the record of the Trial Court. Vide Annexure R1 the appellants want to let-out the ground floor of 3650/- sq.ft. in Transport Nagar area. Vide Annexure R2 ground floor of 3000/- sq.ft. situated in Subhash Nagar Shopping Centre was proposed for rent on minimum rent of Rs. 850/- per sq.ft. Vide Annexure R3 10,000 sq.ft. Vide Annexure R1 the appellants want to let-out the ground floor of 3650/- sq.ft. in Transport Nagar area. Vide Annexure R2 ground floor of 3000/- sq.ft. situated in Subhash Nagar Shopping Centre was proposed for rent on minimum rent of Rs. 850/- per sq.ft. Vide Annexure R3 10,000 sq.ft. of office space, vide Annexure R4 ground floor of 4500 sq.ft. space at Bhagwan Das Road and vide Annexure R6 9000/6000/3000 sq.ft. space at Bhawani Singh Road were advertised for rent. Annexure R5 is not relevant as it does not relate to any building or space for rent. In view of this evidence and the observations of the Trial Court, the issue of comparative hardship was also rightly decided in favour of the plaintiffs. It is also not in dispute that the defendants-appellants have got huge building of their own at Bhawani Singh Road. Thus, in view of the entire discussion made hereinabove, this point is decided against the appellants and in favour of the respondents. (15). Second Point :-It is not in dispute that initially the basement and the ground floor were let-out on monthly rent of Rs. 4,000/-. Thereafter, the first and second floor were given on monthly rent of Rs. 7,500/-. In view of this evidence of the parties, the Trial Court held that the defendants have vacated about half portion of the basement as they started paying proportionate rent of the half portion of the basement. It is also not in dispute that after vacating the first and second floor by the defendants, both the floors were given on rent to the State Bank of India in the year 1979 on monthly rent of Rs. 15,000/-. On the basis of this evidence, the Trial Court observed that the Bank was paying Rs. 7,500/- as monthly rent for one floor only. It was also observed that the defendants themselves demanded rent at the rate of Rs. 8.50 per sq.ft. vide annexure R2 dated 24.1.1993 and the standard rent claimed by the plaintiffs comes to about Rs. 1.50 per sq.ft. and in view of this evidence the Trial Court fixed standard rent at the rate of Rs. 7,500/- per month for the half portion of the basement as well as the ground floor. (16). 8.50 per sq.ft. vide annexure R2 dated 24.1.1993 and the standard rent claimed by the plaintiffs comes to about Rs. 1.50 per sq.ft. and in view of this evidence the Trial Court fixed standard rent at the rate of Rs. 7,500/- per month for the half portion of the basement as well as the ground floor. (16). In view of the entire evidence which was considered by the Trial Court, I find no reasonable ground to interfere with the standard rent fixed by the Trial Court. Thus, this second point is also decided accordingly. (17). Now the cross objections of the respondents-plaintiffs are considered. The only objection is that the Trial Court committed gross error in reducing an amount of Rs. 206139.82 from the amount payable by the defendants, as the aforesaid amount was payable as interest @ 6% per annum while the provisional rent was determined on 12.4.2001. (18). According to learned counsel for the respondents, this amount was wrongly deducted as this amount has nothing to do with the standard rent because the rent was due from January, 1988 to February, 2001 payable at the rate of Rs. 3282.22 per month. Thus, the rent amount due comes to Rs. 518590.76 and a sum of Rs. 206139.82 was further added as interest payable @ 6% per annum and thus this amount had no concern with the standard rent fixed by the Trial Court as the provisional determination under Section 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 was done not at the rate of standard rent fixed by the Trial Court but at the rate of monthly rent of Rs. 3282.22 paid by the defendants. Learned counsel for the appellants was not in a position to controvert the above facts and thus the cross objections are well founded, hence allowed. (19). Consequently, the appeal preferred by the defendants- appellants is hereby dismissed with costs and the cross objections filed by the plaintiffs-respondents are allowed and accordingly the decree of the Trial Court stands modified.