Maharshi Gautam Vidya Niketan Samiti v. Maharshi Gautam Chhatrawas Samiti
2023-02-13
MAHENDAR KUMAR GOYAL
body2023
DigiLaw.ai
ORDER : Mr. Mahendar Kumar Goyal, J. - This civil second appeal has been preferred against the judgment and decree dated 22.05.2019 passed by the learned Additional District Judge no.4, Kota in Civil Regular Appeal No.6/2013 (for brevity "the learned appellate Court") whereby, while allowing the appeal filed by the respondent/plaintiff (hereinafter referred to as "the plaintiff"), the judgment and decree dated 27.02.2013 passed by the learned Additional Civil Judge (Junior Division) No.1, (North) Kota (for short "the learned trial Court) in Civil Case No.78/2001 dismissing the suit for eviction, has been reversed. 2. The relevant facts in brief are that the plaintiff filed a suit for eviction against the appellant/defendant (for brevity "the defendant") from the suit premises comprising of three rooms on the ground floor and eight rooms and two halls on the first floor on the grounds of default in payment of rent, reasonable and bonafide necessity, nuisance and substantial damage to the premises by the defendant diminishing its value. It was averred in the plaint that the subject premises were required for hostel for the students of Shri Maharshi Gautam Samaj. 3. On the basis of pleadings of the parties, seven issues were framed. After recording evidence of the respective parties, the learned trial Court vide its judgment and decree dated 27.02.2013 decided the issues of default in payment of rent, substantial damage to the premises by the defendant and nuisance against the plaintiff; but, while deciding the issue of reasonable and bonafide necessity in favour of the plaintiff, dismissed the suit deciding the issues No.3 and 4 in favour of the defendant pertaining to comparative hardship and partial eviction. The civil first appeal preferred by the plaintiff has been allowed by the learned appellate Court vide its judgment and decree dated 22.05.2019. 4. Assailing the impugned judgment and decree, learned counsel for the defendant contends that the learned appellate Court erred in reversing the findings recorded by the learned trial Court based on appreciation of evidence on record. He submitted that while allowing the appeal, the learned appellate Court did not appreciate that the school was also being run for the benefit of students of the Samaj. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 22.05.2019 be quashed and set aside and the judgment and decree dated 27.02.2013 passed by the learned trial Court be restored. 5. Heard.
He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 22.05.2019 be quashed and set aside and the judgment and decree dated 27.02.2013 passed by the learned trial Court be restored. 5. Heard. Considered. 6. While deciding the Issues No.2 and 2A pertaining to reasonable and bona fide necessity of the subject premises by the plaintiff and it is not coming to an end on account of acquisition of an alternative accommodation by it, in favour of the plaintiff, the learned trial Court has refused to grant the decree of eviction deciding the Issues No.3 and 4 in favour of the defendant which pertained to comparative hardship and partial eviction. The issue No.3 was decided against the plaintiff on the premise that since the defendant was running a school in the subject premises for last about 10 years, not only future of the students would be jeopardized; but, about 8-10 Teachers and Class-IV employees will also face financial hardship as they would be rendered unemployed. It has also been held that from the rental income from the shops situated in the premises and with 4-5 lac capital investment, requisite accommodation for hostel of the students could be increased. This finding of the learned trial Court is in contradiction with the findings recorded vide issues No.2 and 2A wherein, it was held that the tenant could not dictate the landlord to satisfy his requirement from a particular premises or in a particular manner. Even otherwise also, it is trite law that the landlord is the best judge of his need and he cannot be dictated either by the tenant or by the Court to satisfy his requirement in a particular fashion. In the considered opinion of this court, these findings were not sustainable in the eye of law and the learned Appellate Court did not err in reversing these findings vide its judgment and decree dated 22.05.2019. 7. Further, the learned Appellate Court was perfectly justified in deciding the issue of comparative hardship in favour of the plaintiff appreciating the testimony of S/Shri Atul Mani Sharma (DW-1) and Gopal Krishan Sharma (DW-2) who have categorically admitted in their cross-examination that they did not make any attempt to find out an alternative accommodation.
7. Further, the learned Appellate Court was perfectly justified in deciding the issue of comparative hardship in favour of the plaintiff appreciating the testimony of S/Shri Atul Mani Sharma (DW-1) and Gopal Krishan Sharma (DW-2) who have categorically admitted in their cross-examination that they did not make any attempt to find out an alternative accommodation. It is a well settled legal principle that if the tenant makes no endeavor to search for alternative accommodation, the issue of comparative hardship cannot be decided in his favour. 8. Their Lordships have in case of Shamshad Ahmad and Ors. v. Tilak Raj Bajaj (Deceased) through Lrs. and Ors.: (2008) 9 SCC 1 , held as under: "50. Regarding comparative hardship, nothing has been stated by the tenant as to whether any attempt has been made by him to get alternative accommodation and he failed to get such accommodation. In the circumstances, in our opinion, the appellate authority was right in observing that there was no evidence to show that no shop was available to the tenant. It is quite possible, as noted by the appellate authority, that the tenant might have to pay more rent. But that would not preclude the landlords from getting possession of the suit-shop once they had proved genuine need of the property." 9. A Co-ordinate Bench of this Court has, in the case of Sarda Devi and Ors. v. Bhagwati Prasad Dalmion and Ors., held as under: "23. It is settled proposition of law that necessity need not be proved as a dire necessity. Hon'ble Supreme Court in Mohd. Ayub v. Mukesh Chand (2012) 2 SCC 155 has discussed the concept of bona fide requirement of plaintiff with comparative hardship between the landlord and tenant. It has been held that landlord's requirement need not be a dire necessity. It was also held in the said judgment that factum of affluence of landlord is irrelevant, if landlord has bona fide need of the suit premises. The Supreme Court observed that affluence of landlord cannot be a basis of determine the issues of hardship. Otherwise if this is treated a correct approach, then affluent person can never get possession of his premises, even if he proves his bona fide requirement.
The Supreme Court observed that affluence of landlord cannot be a basis of determine the issues of hardship. Otherwise if this is treated a correct approach, then affluent person can never get possession of his premises, even if he proves his bona fide requirement. The Supreme Court also observed that when the tenant did not make any genuine effort to find out any alternative accommodation, even during pendency of litigation, the tenant cannot claim hardship in future. 24. The proposition of law and criteria to adjudge the bona fide necessity and hardship, as observed by the Supreme Court in case of Mohd. Ayub (supra) has been endorsed in subsequent judgment in case of Krishna Kumar Rastogi v. Sumitra Devi (2014) 9 SCC 309 ]." 10. So far as Issue No.4 pertaining to partial eviction is concerned, it is a case of both the parties that the partial eviction would not satisfy either's need. In view thereof, the learned Appellate Court has rightly passed the decree of eviction in favour of the plaintiff on the basis of its reasonable and bona fide necessity for the suit premises, a finding recorded by the learned trail Court which remained unchallenged by the defendant-tenant. 11. This Court finds no substantial question of law involved in the second appeal which is dismissed accordingly.