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2012 DIGILAW 219 (RAJ)

Nissar Mohammed v. Ugam Singh

2012-01-25

KAILASH CHANDRA JOSHI

body2012
JUDGMENT 1. - This Civil second appeal preferred by appellant-defendant Nissar Mohammed is directed against the judgment and decree dated 29.8.2011 passed by learned Additional District Judge, Gulabpura, District Bhalwara in Civil Regular Appeal No. 11/2011 dismissing the appeal filed by the appeal-defendant against the judgment and decree dated 12.5.2011 passed by learned Civil Judge (Senior Division), Gulabpura in Civil Suit No. 38/2005 (25/1996), whereby the suit filed by the respondent-plaintiff was decreed against the appellant-defendant. 2. The brief facts of the case are that the appellant-plaintiff filed a suit for eviction of shop and for recovery of arrears of rent against the defendant-appellant. It was averred in the suit that the shop in question is rented to the defendant at rate of Rs. 450/- per month orally and after 01.09.1993, the defendant did not pay due arrears of rent. Thus, he has committed default in payment of rent. It was further alleged that plaintiff has retired from the Government service on 31.08.1995 and now, he is jobless, therefore, he is having bona fide need of the shop in question to start business of general store. It has been further averred that a notice was sent to the defendant on 12.9.1995, but he did not hand-over the vacant possession of the shop in question nor pay due arrears of rent. The plaintiff prayed that the suit may be decreed against the defendant. 3. The defendant filed written statement and accepted the averments with regard to the tenancy and description of the shop, but other averments of the plaintiff were denied. It was averred in the written statement that the rent shop in question if Rs. 175/- per month including water and electricity charges and he took the shop in question two and half year before and is regularly paying the monthly rent. It was also averred that the defendant has filed a suit for temporary injunction against the plaintiff on 22.2.1996, in which, interim order for maintaining status quo has been passed and as a counter blast, the plaintiff has filed the present suit. Further, it was averred that plaintiff has no bona fide need of the ship in question as he is having two other shops. Further, it was averred that plaintiff has no bona fide need of the ship in question as he is having two other shops. Lastly, it was submitted that defendant has not committed any default in payment of rent and if the plaintiff succeed to vacant the shop in question, then he will great hardship comparison to the plaintiff. It was therefore, prayed that suit may be dismissed. 4. On the basis of the pleadings of the parties, the learned trial Court framed as many as 7 issues and recorded the evidence of the parties. After hearing the arguments of the parties, the learned trial Court decreed the suit against the appellant-defendant vide judgment and decree dated 12.5.2011, against which the appellant-defendant preferred an appeal before the learned lower appellate Court. The learned lower appellate Court vide the impugned judgment and decree dated 29.8.2011 dismissed the appeal and affirmed the judgment of the learned trial Court. Hence, the appellant-plaintiff has preferred this second appeal. 5. The learned counsel for the appellant-defendant contended that the judgments and decrees passed by both the Courts below are perverse as same are based on non-consideration and misreading of evidence and non-consideration of statutory provisions and precedents of law, therefore, the impugned judgment and decrees deserve to be set aside. 6. The learned counsel for the appellant further contended that both the Courts below have considered the contended that aspect of bonafide necessity by misreading the evidence and finding is based against the settled principle of law. 7. Per contra, learned counsel appearing as Caveator defended the judgment and decrees passed by both the Courts below. 8. I have considered the contentions raised by the learned counsel for the appellant-defendant and also perused the judgment of the judgment trial Court as well as the learned first appellant Court. 9. The suit was filed for eviction of shop mainly on the ground of default and personal necessity. Both the facts were denied by the defendant-appellant. In the trial Court, the plaintiff-respondent examined three witnesses, namely, PW-Ugam Singh, PW-2 Mahaveer, PW-3 Kamlesh. The defendant-appellant examined three witnesses, namely DW-1 Nissar Mohammed, DW-2 Shyam Sundar and DW-3 Fakir Mohammed. The plaintiff-respondent does not press the issue regarding default. 10. Now, the short question for consideration of this Court is regarding the bonafide personal necessity of the shop. In the trial Court, the plaintiff-respondent examined three witnesses, namely, PW-Ugam Singh, PW-2 Mahaveer, PW-3 Kamlesh. The defendant-appellant examined three witnesses, namely DW-1 Nissar Mohammed, DW-2 Shyam Sundar and DW-3 Fakir Mohammed. The plaintiff-respondent does not press the issue regarding default. 10. Now, the short question for consideration of this Court is regarding the bonafide personal necessity of the shop. The trial Court as well as the first appellant Court decided this issue against the appellant-defendant. The learned trial Court while discussing the various judgments cited by both the parties decreed the suit against the appellant-defendant, which was affirmed by the first appellate Court. It is settled principle of law that owner is the master of his choice to choose business in the particular portion of property. The question of bonafide necessity is essentially a question of fact. The finding on this question can only be disturbed when there is misreading of evidence available on record. Both the Courts below have considered each and every aspect of the matter and further appreciated the evidence of both the parties in detail. 11. The learned counsel for the appellant in memo of appeal has proposed following substantial questions of law:- "(a) Whether, the impugned judgments and decrees based on no legal foundation and evidence, moreover, non-consideration and misreading of evidence vitiated impugned adjudication of the entire case? (b) Whether, the learned Courts below have committed manifest perversity while not considering the pleadings and proof of appellant and admissions and concessions of plaintiff, thereupon to demolish the bonafide necessity of the plaintiff? (c) Whether, the learned Courts below have erred in law while deciding issue No. 5 regarding comparative hardship, when there is ample evidence available on record regarding availability of alternate accommodation to the plaintiff? (d) Whether, the learned Courts below have erred in law while deciding the issue No. 3 in circumstances when plaintiff failed to start any business since last 16 years in availability of other vacant and suitable shops? (e) Whether, the findings are based on no legal evidence in non-compliance of mandatory provisions of Order 14 Rule 5 Criminal Procedure Code and Rent Laws as no issue regarding partial eviction is framed? (f) Whether, an uncertain decree for excess rent paid is sustainable in the eye of law? (g) Whether, the impugned judgments and decrees are contrary to the remand order dated 25.2.1999? (f) Whether, an uncertain decree for excess rent paid is sustainable in the eye of law? (g) Whether, the impugned judgments and decrees are contrary to the remand order dated 25.2.1999? (h) Whether, the learned Courts below have erred while deciding the issue No. 6 against the defendant as no cause of action arises to the plaintiff to file and maintain the suit? 12. It is admitted fact that the plaintiff-respondent retired from the Government service and now, he wants to start business in the shop in question. There are no contradictions in the statements of witnesses of the plaintiffs. 13. In my considered view, the judgments of both the Courts below are based on sound reasons and do not require any interference at this stage. No substantial question of law as proposed in the appeal is involved in this second appeal. 14. Consequently, this second appeal is dismissed in limine and the impugned judgment and decrees passed by the Courts below are affirmed. 15. However, considering this fact that the appellant is in occupation of the premises in question since long time and is using it for commercial purposes, therefore, looking to the entire facts and circumstances of the case, six months time is granted to vacate the suit premises. 16. A. Copy of this judgment be sent to the respondents.Appeal Dismissed. *******