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2009 DIGILAW 914 (JHR)

Ramdhani Sahu v. Vidya Devi Verma

2009-07-02

M.Y.EQBAL

body2009
JUDGMENT This interlocutory application has been filed on behalf of the appellant for substituting the names of heirs and legal representatives of deceased-sole appellant, who died on 23.4.2009. I.A.no.1684 of 2009 is allowed. Let the name of heirs and legal representatives of deceased-sole appellant, as mentioned in para 4 of the substitution petition, be substituted in his place. This appeal will be heard on the following substantial question of law: Whether the findings recorded by the appellate court reversing the findings of the trial court on the issue of personal necessity can be sustained in law? The respondent has already appeared in appeal and both the counsels have jointly prayed for hearing the appeal on merit. I have heard both sides on merit. The fact of the case lies in a narrow compass. The plaintiff respondent prayed for a decree of eviction of the defendant-appellant from the shop premises on the ground of non payment of rent and also on the ground of personal necessity. The trial court dismissed the suit on both the grounds. The plaintiff-respondent preferred Title Appeal No. 89 of 2005 against the judgment and decree passed by the trial court. The first appellate court affirmed the findings on the issue of default. However, on the issue of personal necessity the appellate court reversed the findings and held that plaintiff requires the suit premises reasonably and in good faith for personal use and occupation. Since the plaintiff-respondent has not filed any separate appeal or cross appeal against the findings recorded by the appellate court with regard to default, the only issue to be decided by this court is the issue of personal necessity. The plaintiff is the owner and landlord of the building premises, in which there are four shops. The defendant is in occupation of one shop where he is running the business. The plaintiff, in order to settle her son, who is unemployed, in business requires the suit premises for starting a readymade garment shop. According to the plaintiff out of four shops the shop in question, which is in occupation of the defendant is measuring 12’ X 25’ whereas the other three shops are measuring 6’ X 10’. The plaintiff pleaded that the shop premises in question is the most suitable place for running a readymade garment shop. According to the plaintiff out of four shops the shop in question, which is in occupation of the defendant is measuring 12’ X 25’ whereas the other three shops are measuring 6’ X 10’. The plaintiff pleaded that the shop premises in question is the most suitable place for running a readymade garment shop. The defendant appellant, on the other hand, denied and disputed the statements made by the plaintiff and stated, inter alia, that one of the four shops was lying vacant and during the pendency of the suit the plaintiff let out a shop to one Manoj Kumar, who is running a telephone both. The trial court, relied upon the evidence of P.W.2, who deposed that the fourth shop was let out to Manoj Kumar five months back i.e. after the filing of the suit. According to the finding of the trial court, the plaintiff let out one vacant shop to Manoj Kumar so the case of personal necessity can not be said to be bona fide. On this ground the suit was dismissed. The appellate court, on the other hand, recorded a finding that out of the four shops three shops measuring 6’ X 10’ and fourth shop, which is the shop in question, is measuring 12’ X 25’. At the back side of the shop there is a residence where the plaintiff resides. The appellate court further held that for running a business of readymade garment a big shop is required. After analyzing the evidence of witnesses the appellate court held that the facts stated by the defendant in the examination-in-chief were contradicted in cross examination. Accordingly, the appellate court decided the issue of personal necessity in favour of the plaintiff. Mr. Manjul Prasad, learned counsel appearing for the tenant, assailed the impugned finding mainly on the basis of evidence of P.W.2, who has stated that one of the shop was let out to Manoj Kumar after filing of the suit. According to the learned counsel, the requirement of the shop premises by the plaintiff cannot be believed. Learned counsel further submitted that if the plaintiff requires the suit premises bonafidely, she could have provided or offered the small shop to the defendant, which was lying vacant. According to the learned counsel, the requirement of the shop premises by the plaintiff cannot be believed. Learned counsel further submitted that if the plaintiff requires the suit premises bonafidely, she could have provided or offered the small shop to the defendant, which was lying vacant. In other words, according to the learned counsel, alternative accommodation was available to the plaintiff, who either could have settled her son in business in the said shop or could have offered a small shop to the defendant. Since the same has not been done, the requirement can not be said to be genuine and bona fide. The only question that false for consideration is as to whether the existence of alternative accommodation available to the plaintiff-land lord would disentitle the plaintiff to seek a decree of eviction. In the instant case, admittedly there are four shops and even assuming that one of the shops measuring 6’ X 10’ was available, that would not be sufficient for running a readymade garment shop and, therefore, plaintiff is certainly entitle to evict a tenant from a big shop, which will be most suitable to run a business of readymade garment. In the case of Dr. Saroj Kumar Das vs. Arjun Prasad Jogani ( 1987 (4) S.C.C. 262 ), the Supreme Court observed that fact that the landlord owned alternative accommodation in the same city would not be detrimental to landlord’s claim for eviction if the accommodation is not reasonably suitable for landlord’s purposes. Materials regarding non-suitability of another flat, is evident from the findings recorded by the appellate court. Hence the High court erred in interfering in second appeal. In another decision, in the case of Gulabbai vs. Narsi Vohra & ors. (A.I.R 1991 SC 1760), the Supreme Court found that during the pendency of the appeal landlord came into possession of alternative accommodation and on that ground it was held that the landlord’s requirement has been fully satisfied. The Supreme Court held that only because of alternative accommodation available to the landlord that does not mean that the requirement of the landlord has been fulfilled. The court has to consider and decide the bona fide requirement of the landlord. The Supreme Court held that only because of alternative accommodation available to the landlord that does not mean that the requirement of the landlord has been fulfilled. The court has to consider and decide the bona fide requirement of the landlord. In the instant case, as noticed above, even assuming that a small shop measuring 6’ x 10’ was available either before or after filing of the suit and it was known to the defendant-appellant then he could have pleaded and brought on record in evidence his option to shift in smaller shop. Admittedly that could not be done by the defendant. In that view of the matter, in my considered opinion, the appellate court has rightly held that shop in question is most suitable for running a readymade garment shop. The finding of the appellate court therefore, does not suffer from serious infirmity and perversity, which requires interference by this court. For the reasons aforesaid, I find no merit in this appeal, which is, accordingly, dismissed.