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2005 DIGILAW 1516 (RAJ)

Preetam Chand v. Saleem Khan

2005-05-20

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is a plaintiff s second appeal arising out of a suit filed by the plaintiff-landlord, appellants herein against the defendant-respondent on eviction on the ground of bonafide and personal necessity as well as the default in payment of rent. The case of the plaintiff-landlord is that he had no other shop in the bazar where he could do business and since the shop in dispute was in main bazar where the business of sugar, boora, batasa, gur, etc. is being done. He also required the shop in dispute for doing the same alongwith the business of general grocery. The plaintiff also claimed eviction on the ground of default in payment of rent. 2. The learned trial Court by Judgment and decree dated 211.1994 decreed the suit of the plaintiff-landlord on the ground of personal bonafide necessity as well as on the ground of default. 3. The tenant-defendant filed a regular appeal before the learned lower appellate Court and the learned lower appellate Court reversed the findings of the learned trial Court on both the issues relating to personal bonafide necessity as well as default and dismissed the suit of the plaintiff-landlord by the impugned Judgment and decree dated 20.12.1995. Consequently, the plaintiff-landlord filed the present second appeal under Section 100, CPC before this Court. 4. This Court on 19.08.1996 issued notice to show cause to the respondent as to why the appeal should not be admitted. Since, 1996, the appeal had been pending at the stage of admission, as such, with the consent of the parties since both the parties were represented, the appeal was heard finally. 5. The learned Counsel appearing on behalf of the appellant has submitted that substantial question of law that arises in this second appeal and which has been pressed by the learned Counsel for the appellant is whether on account of the fact that landlord has started doing business in a rented premises during the pendency of the suit would disentitle the landlord for a decree for eviction against the tenant of his own premises (shop for which he had filed the suit for eviction on the ground of personal bonafide necessity). 6. 6. Learned Counsel for the appellants has taken me through the Judgment of the learned trial Court and has submitted that learned trial Court had categorically found the premises in dispute was required by the landlord for his personal bonafide necessity and further the fact that landlord has started doing business in a rented shop during the pendency of the suit of a business of different nature would not be disentitle the landlord for seeking eviction of the disputed premises. On the question of comparative hardship, learned trial Court found that shop in dispute was required by the plaintiff for doing the business of sugar, boora, batasa, gur, etc. as the bazar where the disputed shop was located was primarily where the business in the aforesaid commodities was being carried out. Learned trial Court also found the issue regarding comparative hardship in favour of the plaintiff , inasmuch as, the tenant had admitted that he had made efforts to seek alternative accommodation but the same was not available. .7. Learned Counsel for the appellant then submitted that the learned lower appellate Court has committed serious illegality in reversing the finding of the learned trial Court. Learned Counsel appearing on behalf of the tenant-respondent submitted that it has come on the record that plaintiff-landlord is carrying on a business in a rented premises where initially he started doing business of general gorcery (kirana) but has switched over to the business of repair of watches and radio etc. The submission of the learned Counsel for the respondent-tenant is that landlord having acquired alternative accommodation and since he is carrying on a business in a rented premises, it .cannot be said that his requirement for the property in dispute (shop) is bonafide requirement. He further submits that the landlord has three shops under his house which are available to him and in view of this fact the submission of the learned Counsel for the respondent is that the learned lower appellate Court rightly taking into consideration the aforesaid facts and circumstances dismissed the suit of the plaintiff-landlord and reversed the Judgment and decree of the trial Court on the ground of personal bonafide necessity. 8. I have given my anxious consideration to the findings recorded by both the Courts below as well as gone through the record and considered the question that has been raised before me. .9. 8. I have given my anxious consideration to the findings recorded by both the Courts below as well as gone through the record and considered the question that has been raised before me. .9. The question arises in this appeal as stated above is as to who is to judge the suitability regarding the personal bonafide necessity in the case of a landlord who is carrying on the business in a rented shop and seeks eviction of the tenant from the shop which as per the case of the landlord he requires for his personal bonafide need to carry on the business of the commodities which are primarily being conducted in the bazar where the shop in dispute is located. Learned Counsel appearing for the appellant has drawn my attention to the Judgment of their Lordships of the Honble Supreme Court in the case of Prativa Devi (Smt.) vs. Krishnan, reported in 1996 (5) SCC 353 wherein their Lordships of the Honble Supreme Court had held as under:- ."The landlord is the best Judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own...... Now, that is a lookout of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bonafide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances." 10. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bonafide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances." 10. Applying the aforesaid principle in the facts and circumstances of the case where the landlord is carrying on a business which he started during the pendency of the suit in a rented premises for earning his livelihood while the suit with regard to the eviction was pending trial cannot deprive the landlord of his right to seek eviction of the tenant and further that merely because he has started a business in a rented shop, cannot be taken as a circumstance to deny the landlord the right to seek eviction of the tenant against whom he had filed the suit for eviction prior to starting the aforesaid business in the rented shop. From a perusal of the Judgment of the learned lower appellate Court, it is clear that learned lower appellate Court committed a serious error of law in denying the plaintiff-landlord the right to seek eviction and reversing the findings given by the learned trial Court. The learned lower appellate Court has denied the relief to the landlord on the ground that he was running the business in a rented premises of the repair and sale of watches, radio and T.V. etc. and further on the ground that prior to having started the aforesaid business the plaintiff had been doing the business in a rented premises which he vacated in pursuance of a compromise entered into with his landlord in a suit for eviction filed by the landlord for the said shop. Suffice it to say that the very fact that even prior to the closing of the present shop, the landlord had been doing business in a rented shop and which he vacated on account of a compromise entered into with his previous landlord who has sought eviction on filing the suit against him and having vacated the same, he purchased the suit shop to run his own business. In such circumstances, the bonafide need of the landlord cannot be disputed. .11. In such circumstances, the bonafide need of the landlord cannot be disputed. .11. The learned lower appellate Court has taken into consideration another circumstance that under the residential house of the Joint Hindu Family of which the plaintiff-appellant was member had three shops under it. The submission of the learned Counsel for the plaintiff-landlord is that alleged premises of the so-called three shops were not shops but were in fact godowns and were not suitable for doing any business. The submission is that the premises which are available with the Joint Hindu Family being suitable for running the business, the landlord should have in the first instance, started his business in the said premises of the Joint Hindu Family rather than having done the business in the rented premises which he vacated on account of the suit being filed against him which was compromised by him and having purchased the property in dispute for running his own business. These facts are not in dispute and the learned lower appellate Court has erred in drawing a completely erroneous inference from the said facts. As submitted above, the suitability of the premises is the .discretion of the landlord and in that view of the matter, the findings given by the learned lower appellate Court reversing the findings of the learned trial Court regarding personal bonafide necessity deserves to be set aside and are hereby set aside. It is, however, necessary to add as a word of caution that even the discretion of the plaintiff-landlord to shift his business from the rented premises to his own premises which he has given on rent cannot be absolute but would also have to stand the test by scrutiny by the Courts. In the facts and circumstances of the present case, the plaintiff was originally running business in a rented shop and when his landlord filed a suit for eviction against the present plaintiff , the present plaintiff amicably settled the matter and vacated the rented premises by handing it over to his landlord. Thereafter, he started his business in another rented premises and filed the suit for eviction against the present defendant for his personal bonafide necessity. Thereafter, he started his business in another rented premises and filed the suit for eviction against the present defendant for his personal bonafide necessity. Thus, it is evident that plaintiff has been doing business in rented premises when he has his own premises in order to establish himself firmly without the fear of facing future threats of eviction from the landlord, he wants to shift his business to his own premises. There would be sufficient justification to hold that the plaintiff has exercised his discretion to shift to his own premises by getting the same vacated on sound principle and in the instant case the discretion exercised by the landlord, in my view, stands firm on the aforesaid principle. 12. There is however another circumstance which has been taken into consideration regarding the landlord having three godowns in his residence which were available to the landlord. So far as they are concerned, after the arguments had been concluded, while going through the memo of appeal, the contents of para (j) of the grounds was looked into wherein the landlord-appellant had specifically stated as under:- "The appellant makes his offer to give one of the shops out of them to the defendant if the same are shops and not godown and otherwise also the appellant is ready to give one of the shops to the defendant to show his bonafides............" In view of the aforesaid, the matter was listed in the Court again on 25.04.2005 and it was specifically put to the appellant whether he stands to abide by the aforesaid offer. On receiving an affirmative answer from the learned Counsel for the appellant which was put to the learned Counsel for the respondent and the learned Counsel for the defendant-tenant respondent sought time to seek instructions in that behalf . In view of the aforesaid the case was adjourned and on 16.05.2005, the parties appeared alongwith their Counsel and while appellant-landlord affirmed his offer to give one of the godowns to the defendant-respondent tenant. The defendant declined the said offer which is recorded in the ordersheet dated 16.05.2005 and submitted that godowns are located at place which is not suitable for carrying on his business, as such, he is not inclined to accept the offer made by the appellant. 13. The defendant declined the said offer which is recorded in the ordersheet dated 16.05.2005 and submitted that godowns are located at place which is not suitable for carrying on his business, as such, he is not inclined to accept the offer made by the appellant. 13. In this view of the matter, two points clearly made out (1) that so called premises available with the landlord are not shops but godowns and; (2) that they are located at a place which is not suitable for carrying on the business. In that view of the matter, the findings of the learned lower appellate Court that appellant was possessed alternative sites which are available for the landlord to start his business in the disputed godowns/shops in his residential house clearly deserve to be set aside on the plane showing of the respondent-tenant himself . Consequently, the findings recorded by the learned lower appellate Court deserve to be set aside. The learned Counsel for the appellant has then submitted that the respondent is using the shop only for storing his goods and material and is in fact selling his wares on a handcart (thela) in the market. He submits that appellants would be willing to give one of the godowns to the respondent for storing of his material in case the respondent is willing to use the same for keeping his material in the said godown. However, this offer of the appellant has not been accepted. 14. In the facts and circumstances, the appeal filed by the plaintiff-landlord is allowed. The Judgment and decree passed by the learned lower appellate Court dated 20.12.1995 is set aside and that of the learned trial Court dated 211.1994 for eviction on the ground of personal bonafide necessity is restored. It is made clear that learned Counsel for the appellant has not pressed the point regarding eviction on the ground of default in payment of rent. In the facts and circumstances, the respondent is allowed six months time to vacate the premises in dispute in case he submits an undertaking before the learned trial Court on or before 07.07.2005 that he shall handover vacant and peaceful possession of the premises to the plaintiff-landlord within six months i.e., on or before 30.11.2005. In case the said undertaking is not filed within the time as aforesaid, the plaintiff shall be entitled to execute the decree. 15. In case the said undertaking is not filed within the time as aforesaid, the plaintiff shall be entitled to execute the decree. 15. In the facts and circumstance of this case, the parties shall bear their own costs.