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2017 DIGILAW 132 (RAJ)

Tikam Chand S/o Shri Gopi Kishan v. Ram Chandra S/o Shri Bax Ram

2017-01-11

VIJAY KUMAR VYAS

body2017
Judgment : 1. The appeal has arisen out of judgment dated 20.9.2012 passed by learned Additional District Judge No.3, Ajmer in Regular Civil Appeal No.5/2012, whereby the appeal was allowed and the judgment & decree dated 9.12.2011 passed by learned Additional Civil Judge (Jr. Div.) No.2, Ajmer was set aside and the suit filed by appellants/plaintiff was dismissed. Learned Additional Civil Judge (Jr. Div.) No.2, Ajmer in Regular Civil Suit No.226/2002 (06/2001) vide judgment dated 9.12.2011 decreed in favour of appellants/plaintiffs and directed respondent/defendant to hand over vacant possession of disputed shop within two months. Plaintiffs were also declared entitled to receive Rs.100/- per month as mesne profits from defendant. 2. In brief, facts of the case are that appellants/plaintiffs preferred a suit on 4.1.2001 against the respondent/defendant with the averments that the shop described in para no.1 of the plaint is in possession of respondent/defendant as a tenant on rent @ Rs.35/ per month, excluding electricity and water charges. The rented out premise is bona-fidely required to run business by plaintiff No.1 - Shri Tikam Chand (deceased), who has no other appropriate premises available. Plaintiff No.2 – Lekhraj is a goldsmith. He required the shop to run his goldsmith business. Respondent can do his business from some other shop. Presently, plaintiff No.2 is doing his business as a hawker. The plaintiffs are comparatively suffering more hardship then the defendant. No other alternate premise is available. Therefore, decree of eviction against defendant be granted. Defendant in his written statement denied the necessity of premises for plaintiff. Earlier, suit on the basis of necessity for plaintiff No.1 was rejected and the appeal is pending. Therefore, the present suit is not maintainable. In that earlier suit, the trial court did not accept the necessity of the premises, both for Tikam Chand and his son Lekhraj. Son of plaintiff is not doing business of goldsmith. He does business of toys and other articles, etc. casually by sitting at a place nearby premises in question. There is no bona fide necessity of the premises, rather plaintiffs used to get vacated the premises and thereafter again let out on higher rent. Only six feet wide place is required to run a business of goldsmith and the same is available near the premises in dispute. Therefore, alternate premise is also available. There is no bona fide necessity of the premises, rather plaintiffs used to get vacated the premises and thereafter again let out on higher rent. Only six feet wide place is required to run a business of goldsmith and the same is available near the premises in dispute. Therefore, alternate premise is also available. Defendant is earning bread & butter for twenty members of his family from only this shop. If, he is evicted, he will be deprived of business. Hardship will also be more to the defendant if the premises are being vacated. Therefore, the suit be rejected. 3. On the basis of pleadings, following issues were framed by the trial court : 1& vk;k oknh la0 1 dks okni= dh pj.k la0 3 esa of.kZr fdjk;snkjh ifjlj dh vius iq= oknh la0& 2 gsrq ;qfDr;qDr o ln~Hkkfod vko';drk gSA 2& vk;k fdjk;snkjh ifjlj [kkyh u gksus dh lwjr esa oknhx.k dks izfroknh dh rqyuk esa vf/kd dfBukbZ gksxhA 3& vk;k oknxzLr ifjlj ls izfroknh dk vkaf'kd fu"dklu laHko gSA 4& vk;k okn tokcnkos dh pj.k la0& 07 ds vuqlkj fujLr gksus ;ksX; gSaA 5& vuqrks"kA 4. Two witnesses were examined and four documents were exhibited on behalf of the plaintiffs. Three witnesses were examined and thirteen documents were exhibited on behalf of defendant. After hearing both the parties, learned trial court vide judgment & decree dated 9.12.2011, decreed the suit in favour of the plaintiffs and directed the defendant to hand over the vacant possession of the premises within two months. The plaintiffs were also held entitled to receive Rs.100/- per month as mesne profits against use and occupation of the premises by the defendant. Learned Appellate Court vide judgment and decree dated 20.9.2012 allowed the appeal preferred by the defendant/respondent and set aside the judgment & decree dated 9.12.2011 passed by learned trial court, so also rejected the suit filed by the plaintiffs. Against this judgment & decree dated 20.9.2012, appellants/plaintiffs have preferred this second appeal. 5. Learned counsel for the appellants/plaintiffs submitted that learned appellate court has committed serious illegality in reversing the judgment & decree dated 9.12.2011 passed by learned trial court without there being any legal or factual infirmities. Against this judgment & decree dated 20.9.2012, appellants/plaintiffs have preferred this second appeal. 5. Learned counsel for the appellants/plaintiffs submitted that learned appellate court has committed serious illegality in reversing the judgment & decree dated 9.12.2011 passed by learned trial court without there being any legal or factual infirmities. Learned appellate court has failed to consider that the landlords have a right to have their own accommodation at their own choice and they cannot be compelled to carry on their business, whatever the premises available to them, the landlords cannot be forced to carry out their business on 1st Floor. Learned appellate court has also failed to appreciate the comparative hardship in favour of the appellants/plaintiffs. The tenant cannot be continued in the rented premises without establishing that he made the bona fide search for alternate premises and failed to get the same. In absence of such evidence, hardship should not have been decided in favour of the respondent/defendant. There are serious questions of law involved which require indulgence by this court. 6. Per contra, learned counsel for the respondent/defendant submitted that a suit filed earlier on the basis of bona-fide necessity was rejected and the matter was under challenge before the appellate court. The landlord has preferred this new suit in the garb of necessity of a co-plaintiff. Alternate premises are available if the defendant is evicted, he will be deprived of the business and all the family members will also have to bear the brunt. Learned appellate court has rightly appreciated the evidence available on record. There is no perversity in the judgment of appellate court. No question of law is involved so as to require indulgence by this court. 7. I have given thoughtful consideration to the rival submissions and gone through the material available on record. 8. On perusal of depositions made by Kamla Devi (PW-1) and Lekhraj Soni (PW-2) before the trial court, it reveals that the premise is said to be required for running Sunari (goldsmith) business by Lekhraj. Presently, Lekhraj (PW-2) is doing his business as a hawker as per the evidence adduced by the plaintiffs/appellants. The alternate premises suggested by the defendant to be available with the plaintiffs are one shop above the shop under question and one platform (Chabutra) adjacent to the main building of the plaintiffs. Presently, Lekhraj (PW-2) is doing his business as a hawker as per the evidence adduced by the plaintiffs/appellants. The alternate premises suggested by the defendant to be available with the plaintiffs are one shop above the shop under question and one platform (Chabutra) adjacent to the main building of the plaintiffs. Defendant could not rebut the fact narrated from the plaintiff side that the platform is no more available. It was there but the same was demolished by the concerned authorities as an encroachment. So far as the shop available on 1st Floor is concerned, evidence adduced by the plaintiffs shows that the business of goldsmith cannot run on 1st Floor. However, some of the witnesses have admitted that many people run business of goldsmith on 1st Floor also. So far as the necessity to run business of goldsmith for Lekhraj is concerned, it has been admitted by some witnesses of plaintiff that besides doing business as hawker, Lekhraj is also running a guest house. But, simultaneously, the evidence is also that business of guest house is not a permanent phenomena. Only at the time of Ursh (festival), some rooms available with Lekhraj are being let out by him to the Jairins (pilgrims). On the other hand, the evidence adduced by defendant does not make it clear as to why the premises is not required to be vacated, the intention of the plaintiffs was only to annoy the defendant and let out the premises to some other tenant after increasing the rent. Such averments should have been substantiated by the defendant. 9. Learned appellate court while not concurring with the findings of the trial court has held that in view of availability of alternate premises, the necessity expressed by the plaintiffs is not a bona fide one. After perusing the evidence, the approach of the appellate court cannot be appreciated. When proper premises belonging to the landlord is available, how the landlord can be compelled to fulfill his necessity by using other premises which is not appropriate to run the business smoothly. It is settled law that the landlord of the premises has the choice as to in which part of his premises, he wants to run business. Moreover, if the rented premises is the only appropriate premises to fulfill the requirement of landlord, then plea of the tenant that alternate premises is available, cannot be accepted. 10. It is settled law that the landlord of the premises has the choice as to in which part of his premises, he wants to run business. Moreover, if the rented premises is the only appropriate premises to fulfill the requirement of landlord, then plea of the tenant that alternate premises is available, cannot be accepted. 10. Learned appellate court has given undue importance to the averments of the defendant that if the premise is got vacated, more hardship would be faced by the defendant in whose family there are twenty members and they are dependent upon only this business. No evidence from defence side has come as to whether the defendant/tenant ever tried to get another premises let out to him. Without making any efforts for such alternate rented premises, tenant cannot say that he will suffer comparatively more hardship. On the contrary, landlord who is owner of the premises, if he is deprived from doing his business of choice from appropriate premises, he would suffer more hardship. 11. In cross examination, Kamla (PW-1) and Lekhraj (PW-2) have refused to give shop available at First Floor in place of the shop presently in possession of the tenant on the ground floor. But the tenant has neither made such offer in his written statement nor has he stated about it in his examination in chief. A random response to a question during cross examination cannot be taken as a serious offer. Therefore, this answer given by witnesses of landlord in cross examination, cannot be made a base to question their bona fide necessity. 12. Learned appellate court has not set aside the finding of trial court on issue no.3. But witness of landlord has stated that if the shop in question is partially vacated even then his necessity cannot be meet out looking to the nature of business of both the parties and other factors. Learned trial court has found the issue no.3 proved in favour of the landlord and there is nothing on record for this court to differ from such a finding. 13. Learned appellate court has not appreciated the material available on record in right perspective and in accordance with the established principle of law. Therefore, the findings of the appellate court cannot be upheld. The facts and legal points, all are in favour of landlord. Therefore, he deserves a decree in his favour. 14. 13. Learned appellate court has not appreciated the material available on record in right perspective and in accordance with the established principle of law. Therefore, the findings of the appellate court cannot be upheld. The facts and legal points, all are in favour of landlord. Therefore, he deserves a decree in his favour. 14. In the result, the appeal is allowed. The judgment & decree dated 20.9.2012 passed by the appellate court is set aside. The judgment & decree dated 9.12.2011 passed by the trial court is upheld and affirmed.