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2005 DIGILAW 2806 (RAJ)

Om Prakash Saini v. Smt. Baji Devi Saini

2005-10-25

S.N.JHA

body2005
JUDGMENT 1. - This second appeal by the defendant arises from a suit for eviction. The trial Court dismissed the suit. The fist appellate Court set aside the judgment and decree of the suit. 2. The eviction was sought on the ground of personal necessity. According to the plaintiffs, plaintiff No.2 wants to do separate business in the suit shop and, therefore, needs it for this own occupation. Mr. Kamlakar Sharma appearing for the appellant submitted that in order to succeed in a suit for eviction, the landlord is required to aver and prove that the need is bona fide as well as reasonable. In the instant case, there was not even the averment that the plaintiffs alleged need was reasonable He referred to para 5 of the plaint and submitted that all the plaintiff stated was that the need was bona fide . In support of his submission, reliance was placed on M.S. Zahed v. K. Raghvan, (1999) 1 SCC 439 and Pratap Rai Tanwani & Anr. v. Uttam Chand & Anr., (2004) 8 SCC 490 . 3. Elaborating the point, Mr. Sharma submitted that on consideration of evidence, the trial Court had found that the family was doing business elsewhere. Besides plaintiff No.1 - the elder brother of plaintiff No.2 - was found to be doing business in the adjacent shop. It was stated that the fact that plaintiff No.1 was doing business in the adjacent shop was suppressed in the plaint which makes the case doubtful. It was submitted that the suit for eviction cannot be decreed on wish of the landlord. In the instant case, the alleged need was artificial. It was stated that the appellant had earlier filed suit against the plaintiffs and the present suit for eviction was filed by them as a sequel to the said suit. Counsel also submitted that the trial Court had given adequate reasons to dismiss the suit but without assigning good grounds the first appellate court reversed the judgment. Counsel also went into the question of comparative need of the plaintiffs and the defendant appellant. 4. Mr. Satish Khandal appearing for the respondents supported the findings of the first appellate Court and submitted that the appeal is concluded by findings of fact and there is no scope for interference. 5. Counsel also went into the question of comparative need of the plaintiffs and the defendant appellant. 4. Mr. Satish Khandal appearing for the respondents supported the findings of the first appellate Court and submitted that the appeal is concluded by findings of fact and there is no scope for interference. 5. It is true that in para 5 of the plaint, the plaintiffs did not specifically mention the term 'reasonable' while describing their need of the suit shop. In my opinion, mere omission to mention 'reasonable' or 'bona fide' does not conclude the matter. Even where necessary averments are made and the need is described as reasonable and bona fide, the landlord is required to prove the foundational facts constituting such need. Thus what is relevant is whether the foundational facts have been stated in the plaint and proved by evidence or not? The definite case of the plaintiffs as indicated above is that plaintiff No.2 needs the suit shop for doing his own separate business. The finding of fact on the point is against the appellant. 6. From perusal of the record and submissions of the counsel for the parties, it is manifest that the family of the plaintiff is engaged in business activities and earns its livelihood therefrom. In the circumstances, the alleged need of the plaintiff No.2 to start separate business in the suit shop cannot be said to be unreasonable. It is to be observed here that whereas the term 'reasonable' has to be considered qua need of the person concerned, the term ' bona fide ' has to be considered qua the premises. I am satisfied that notwithstanding the omission to mention that the need was reasonable, the plaintiffs reasonably required the premises suit shop for occupation of plaintiff No.2 and they also succeeded in proving the same. The appeal is concluded by findings of fact with which there is no scope for interference in second appeal. It is accordingly dismissed.After the above order was dictated, Mr. Sharma submitted that having regard the fact that the appellant has been earning his livelihood from the business carried on by him in the suit shop for a long time he may be allowed time to vacate the premises so that he may make alternative arrangements. It is accordingly dismissed.After the above order was dictated, Mr. Sharma submitted that having regard the fact that the appellant has been earning his livelihood from the business carried on by him in the suit shop for a long time he may be allowed time to vacate the premises so that he may make alternative arrangements. After hearing counsel for the respondent, I am of the view, it would be in the interest of justice to permit the appellant time up to 30.10.2006 to vacate the premises. It is ordered accordingly. The decree of the first appellate Court is modified to this extent.The order is subject to the appellant filing an undertaking within one month from today that he would vacate the premises on or before 31st October, 2006 and deliver the vacant possession thereof to the respondent; that he will not directly and indirectly allow any person to take possession in the meantime; and that he will pay arrears of rent if any and current rent month by month till then. Omission to file the undertaking and carry out the terms thereof will entitle the plaintiffs respondents to put the decree, and also make the appellant liable to contempt of this Court.Decree Modified to extent of allowing time to vacate till 30.10.2006. *******