Honble SHARMA, J.–This is a tenants second appeal against the judgment and decree dated February 12, 2001 of the Additional District Judge No. 9 Jaipur City whereby the Lordships first appeal was allowed, judgment and decree dated August, 16, 1996 of the Additional Civil Judge (Senior Division) No. 5 Jaipur City were set aside and landlords suit for ejectment of tenanted shop was decreed. (2). Contextual facts depict that the plaintiff landlord (for short landlord) let out the shop in question to the defendant tenant (for shot tenant) on July 1, 1978 at monthly rent of Rs. 120/-. The rent was increased to Rs. 150/- on January 1, 1982. The landlord on July 17, 1986 filed a suit for eviction and arrears of rent with the averments that the tenant had neither paid nor tendered the rent since April 1, 1985. It was further pleaded that shop was reasonably and bonafidely required for Dinesh Kumar, the son of land lord who had completed his graduation and if the shop was not vacated the landlord would suffer more hardship in comparison to the tenant. The landlord also pleaded that the tenant, after consuming liquor every day used to create nuisance. The tenant in the written statement traversed the allegations. It was averred that the landlord did not require the shop since the already had 4 shops out of which two shops had been got vacated and were lying vacant. The tenant who had five daughters and two sons was only earning member and he had no other source of income. It was also pleaded that the tenant neither committed default in payment of rent nor created nuisance. The land lord filed rejoinder reiterating the facts pleaded in plaint. (3). Out of nine issues framed, issue No. 1 related to default in payment of rent, whereas issue No.2 was with regard to reasonable and bonafide necessity, issue No. 5 related to partial eviction and issue No. 6 related to nuisance. Four witnesses were examined by the landlord and six by the tenant. Learned trial court decided these issues against the landlord and dismissed the suit. However first appellate court reversed the findings of issues relating to reasonable bonafide necessity and partial eviction and decreed the suit. (4).
Four witnesses were examined by the landlord and six by the tenant. Learned trial court decided these issues against the landlord and dismissed the suit. However first appellate court reversed the findings of issues relating to reasonable bonafide necessity and partial eviction and decreed the suit. (4). Reversal finding arrived at by the first appellate court raises following substantial questions of law- (i) Whether in a situation where every member of the landlord family has business of his/her own, suffer greater hardship compared to an alone bread earner (Barber) looking after a family of 11 members? (ii) Whether the bonafide necessity of a shop for the son of the landlord would not be met by eviction of two other shops got vacated subsequent to filing of the suit? (iii) Whether finding on the ground of bonafide requirement the comparative hardship is based on misreading of Ex. A/7? (5). It is well settled that the first appellate court is competent to reverse a finding of fact arrived at by the trial Court if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises. The first appellate court must however assign its own reasons for arriving at a different finding. (6). Having scanned the material on record we notice that landlord Badri Narain (PW.1) in his cross examination admitted that two shops admeasuring 6 x 13 and 3 x 8 which were let out to Radio mechanic and tailor, got by him vacated during the pendency of the suit and in those shops his elder son Suresh was carrying on his business. According to land lord the size of the shop in question in which the tenant has been running saloon, is 8 x 8. The witnesses examined by the land lord viz. Dinesh Kumar (PW. 2) Ram Lal (PW. 3) and Ramesh Vyas (PW. 4) also admitted this fact in their cross examination that after institution of the suit for eviction against the tenant, the land lord had acquired possession of two shops. Landlord Badri Narain (PW. 1) also admitted that he also owned two vacant rooms, doors of which open towards the road. Learned trial court after considering the evidence decided issue No. 2 against the landlord and held that the shop in question was not reasonably and bonafidely required by the landlord.
Landlord Badri Narain (PW. 1) also admitted that he also owned two vacant rooms, doors of which open towards the road. Learned trial court after considering the evidence decided issue No. 2 against the landlord and held that the shop in question was not reasonably and bonafidely required by the landlord. Issues No. 3 and 5 relating to comparative hardship and partial eviction were also decided against the landlord. (7). During the pendency of first appeal Landlords son Dinesh Kumar passed LL.B. and on September 14, 1988 got himself registered as an Advocate with Bar Council of Rajasthan. The landlord in his affidavit accepted that Dinesh Kumar was enrolled with Bar Council of Rajasthan but stated that he was not interested in practice of law. Dinesh Kumar also furnished undertaking that as and when the shop in dispute gets vacated he would get his enrollment with the Bar Council cancelled and start the work of hosiery and stationery. (8). Learned first appellate court in the impugned judgment observed as under- (i) Tenanted shop was let out in 1978 only for eleven months and Dinesh, the son of land lord, for whom the shop is required has been sitting idle despite being enrolled as an Advocate in 1988. Had the shop been not required by him, he would have started the profession of advocacy. In such a situation it can not be said that requirement is not reasonable and bonafide. (ii) Finding recorded by the trial court is against the record of the case. The witnesses examined by the tenant themselves deposed that the shops that were vacated during the pendency of the suit were small shops and the landlord converted them in one shop and after installation of cabin, it became congested. (iii) Landlord can not be compelled to ask his son Dinesh to start his business in any other accommodation. (iv) Tenant could easily get shop on rent in the same vicinity. (9). I have heard learned counsel for the parties. (10). I shall first take up the question relating to the landlords reasonable and bonafide requirement which is a ground for eviction under clause (h) of sub rule (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short Rent Act). For the purpose of applicability of Section 13 (1)(h), the requirement of the land lord has to be bonafide and reasonable.
For the purpose of applicability of Section 13 (1)(h), the requirement of the land lord has to be bonafide and reasonable. If any of these two elements of requirement is missing or both the elements are missing on the facts of the case, no decree for possession can be passed in favour of the land lord under this provision. Their Lordships of the Supreme Court in Bega Begum vs. Abdul Ahada Khan ( AIR 1979 SC 272 ) indicated that the words `reasonable requirement postulate that there must be an element of need as opposed to a mere desire or wish. The connotation of the term `need or `requirement should not be artificially extended nor its language so unduly stretched or strained so as to make its impossible or extremely difficult for the land lord to get a decree for eviction. (11). Factual situation that emerges from the material on record may be summarised thus- (i) The size of the tenanted shop is 8 x 8. (ii) During the pendency of the suit the landlord took in his possession two shops admeasuring 6 x 13 and 3 x 8. (iii) In the year 1988 Dinesh Kumar, the son of landlord for whom the tenanted shop is required, got himself enrolled as an Advocate with the Bar Council of Rajasthan. (iv) Dinesh Kumar furnished undertaking in the first appellate court that as and when the tenanted shop is vacated, he would get his enrollment with the Bar Council cancelled and start the business of hosiery and stationery. (v) Dinesh Kumar stated that he was not interested in practising law and did not join legal profession. (vi) Landlord has been in possession of two vacant rooms, doors of which open on the road. (vii) The tenant except the tenanted shop, has no other accommodation. (12). In Badrinarayan vs. Govind Ram (12), the Honble Apex Court held that a mere wish or desire of the landlord to acquire possession over the tenancy premises cannot be said to be a bonafide and reasonable requirement. Requirement implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. The degree of urgency or the intensity of felt need assumes significance.
Requirement implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. The degree of urgency or the intensity of felt need assumes significance. It is a judicious process of finding out, as far as practicable and then making a comparative measuring of the two degrees, which is involved in arriving at a finding on comparative hardship. (13). Scheme of the Rent Act falls within the domain of equitable and social justice. The court has to find out judicially as to whether the requirement of land lords is reasonable and genuine. In Meenal Eknath Kshirsagar vs. Traders and Agencies ( 1996 (5) SCC 344 ) on which reliance is placed by learned counsel for the land lord, Honble Supreme Court propounded thus- (para 20) ``It is for the landlord to decide how and in what manner he should live and he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate to him to continue to occupy such premises. (14). In Meenal Eknaths case the position of the landlord was precarious one. The landlord had no other premises except the suit premises and earlier she was staying with her husband who himself was the tenant and even that possession was parted with the brother of her husband. It is difficult to appreciate how the said decision can be of any assistance to the learned counsel for the landlord as it has been found that despite the availability of two vacant shop, landlords son Dinesh Kumar did not take any shop to start the business of hosiery and stationery. On the contrary he involved himself in the study of law and got himself enrolled as an Advocate. The evidence on record shows that there is no genuine or felt need of the landlord for the tenanted shop. In my opinion the appraisal of evidence by the trial court neither suffered from a material irregularity nor is based on the inadmissible evidence or on conjectures and surmises. The reversal finding of the learned first appellate court therefore is not sustainable. (15).
In my opinion the appraisal of evidence by the trial court neither suffered from a material irregularity nor is based on the inadmissible evidence or on conjectures and surmises. The reversal finding of the learned first appellate court therefore is not sustainable. (15). For these reasons, I allow the appeal and set aside the judgment and decree dated February 13, 2001 of the learned Additional District Judge No. 9 Jaipur City. No costs.