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2005 DIGILAW 2803 (RAJ)

Ratan Lal through L. Rs. v. Chauthi Lal.

2005-10-25

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is a Judgment tenant-defendants first appeal in a suit for eviction filed by the plaintiff-landlord respondent. Learned Additional District Judge, Karauli by the impugned Judgment dated 010.1996 decreed the suit for eviction on the ground of personal bona fide necessity in favour of the plaintiff -respondent landlord and, hence, this appeal. 2. During the pendency of the appeal, the original defendant Ratan Lal died and an application was moved for substitution by Kanhaiya Lal, son of the deceased-tenant Ratan Lal. The said application was opposed on the ground that Kanhaiya Lal was not carrying on business with the deceased-tenant appellant upto the time of his death in the premises in question and consequently, in view of the definition of the tenant under Clause (7) of Section 3 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as “the Act of 1950”) Kanhaiya Lal has no right to be substituted and continue the appeal. This Court vide order dated 02.04.2004 framed an issue to that effect and remitted the same to the Court below for a finding to be recorded on the said issue alongwith an additional issue regarding partial eviction as it was submitted that learned trial Court while decreeing the suit for personal bona fide necessity in favour of the landlord had not taken into account the fact as to whether partial eviction of the defendant-tenant from the suit premises was possible as required by Section 14 Sub-section (2) of the Act of 1950. 3. Upon the remand of the case, learned Additional District Judge vide his Judgment dated 010.2004 decided the issue regarding the objection as to whether Kanhaiya Lal is entitled to be substituted in place of deceased-tenant Ratan Lal in faovur of Kanhaiya Lal and held that he was carrying on the business in the suit premises alongwith the deceased-tenant Ratan Lal upto the time of his death in the premises in question and hence, he is entitled to the substitution and prosecute this appeal. On the second issue regarding partial eviction it was found that a decree for partial eviction of the defendant-tenant from the premises was not possible as it was admitted by both the parties before the learned Court below. None of the parties have raised any objection to the aforesaid findings recorded by the learned lower Court vide its Judgment dated 010.2004. 4. None of the parties have raised any objection to the aforesaid findings recorded by the learned lower Court vide its Judgment dated 010.2004. 4. It is in this background that present appeal has come up for hearing. The submission of the learned Counsel, appearing on behalf of the defendant-tenant appellant is that the learned Court below has committed an error in holding that there was a personal bona fide necessity for Krishna Kumar, the grandson of the plaintiff , for whose need the shop in question was required. It has come in the evidence that the father of Krishna Kumar viz., Om Prakash is carrying on the business of a medical store in a rented premises which is situated on the land which belongs to a Masjid and the Masjid Committee has given the land on lease to Om Prakash, who has constructed the shop on the same and, therefore, it is submitted that the need in the present case stands fulfilled. 5. Learned Counsel appearing on behalf of the respondent-decree holder, on the other hand, has taken me through the evidence as well as the findings of the learned trial Court on issues No. 3 and 6 relating to personal bona fide necessity and comparative hardship. Learned Court below has taken into account the evidence of the parties and has come to the conclusion that need of the plaintiff for Krishna Kumar is bona fide and that he requires the suit shop which is situated opposite the hospital in the city of Karauli where majority of the shops are of medical stores and allied services and, as such, it was held that suit shop is required bona fide by the landlord for his grandson Krishna Kumar. It has also been held that in case the suit shop is not made available to the plaintiff s grandson, the plaintiff s grandson and the landlord would suffer greater hardship as compared to the defendant-tenant appellant. This finding has been recorded on account of the fact that defendant-tenant is running a business of cycle repair and puncture repair in the shop in question and the defendant has admitted that he has made no effort to find an alternate premise. 6. I have given my thoughtful consideration to the rival submissions and have gone through the record as well as the findings of the learned trial Court on issues No. 3 and 6. 6. I have given my thoughtful consideration to the rival submissions and have gone through the record as well as the findings of the learned trial Court on issues No. 3 and 6. 7. In the instant case, the learned trial Court after considering the evidence of parties has held that the grandson of the plaintiff Krishna Kumar is a Science Graduate. Krishna Kumar has appeared in the witness box as PW-4 and has stated that he has acquired the degree of B. Sc. and thereafter has been sitting with his father in the shop and doing the business of running medical store and he has acquired sufficient experience in the same. It is not disputed that the shop in question, is situated opposite the hospital where the business of medical store can run profitably. So far as the business being running at the present location, on the land of the Masjid is concerned, the learned trial Court has relied upon the testimony of the plaintiff that it is being run in a rented premises belonging to the Masjid and that the Masjid Committee has already told Om Prakash, son of the landlord, who is running the medical store in the said shop to vacate the premises. The aforesaid evidence led by the plaintiff has not been rebutted by the defendant. The defendant made no effort to produce any of the member of Masjid Committee or any other witness from the side of Masjid Committee to state before the Court that in fact the Masjid Committee does not want the shop in which Om Prakash is running the business vacated. The evidence led by the plaintiff on this question remains unrebutted. To my mind the choice of the place where the plaintiff wants to run the business and more particularly in his own premises as opposed to be a rented premises where he is running business lies with the landlord. The defendant could not object by saying that since, the landlord is at present already running the business in a rented premises he is not entitled to the premises in dispute which is on rent with the defendant-tenant. In that view of the matter, having gone through the entire evidence on record, I am satisfied that the findings arrived at by the learned trial Court on the issue of personal bona fide necessity call for no interference. In that view of the matter, having gone through the entire evidence on record, I am satisfied that the findings arrived at by the learned trial Court on the issue of personal bona fide necessity call for no interference. The findings with regard to the comparative hardship are also based on sound and reasonable principles and the same call for no interference in the facts and circumstances of the case. Learned trial Court has taken into consideration the location of the suit shop, the nature of business and the qualification of Krishna Kumar and decided the issue in favour of the landlord. The shop is located opposite the hospital and the business which is sought to be run is that of running medical store. 8. The learned trial Court came to the conclusion that the issue with regard to the comparative hardship deserves to be decided in favour of the plaintiff as greater hardship would be caused to the landlord in case the premises in dispute are not made available by passing a decree for eviction on the ground of personal bonafide necessity as compared to the tenant, who is running a cycle repair/puncture repair business which can be run by the tenant at any other alternate site. The plaintiff has a qualified grandson who is otherwise not having any premises to do the business of a medical store on his own. The grandson has sufficient experience and the disputed shop can be run profitably as a medical store as it is situated opposite the hospital. The findings arrived at by the learned trial Court call for no interference and consequently, this appeal stands dismissed. 9. However, in the facts and circumstances, I deem it just and proper to allow two months time to the appellant-tenant to handover vacant and peaceful possession of the premises in dispute on or before 312.2005. 10. Subject to the aforesaid, this appeal stands dismissed. There shall be no order as to costs.