Rajasthan High Court - Jaipur
Mangi Lal vs Om Prakash on 7 October, 2004
Equivalent citations: RLW2005(1)RAJ452, 2005(1)WLC194
JUDGMENT A.C. Goyal, J.
1. This is the second appeal by the plaintiff- landlord.
2. The plaintiff filed a civil suit for eviction on 18.4.1977 with the averments that the defendant is the tenant of suit shop on monthly rent of Rs. 101/-. Eviction was sought on the ground of reasonable and bonafide requirement.
3. The defendant vide written statement came out with a case that he was inducted as a tenant in the suit shop in the year 1970 on monthly rent of Rs. 75/-. The rent was enhanced to Rs. 101/-. He denied the ground of eviction.
4. Issues were framed. Evidence was recorded. Learned Munsif Baran, District Kota vide judgment dated 20.5.1988 arrived at this finding that the plaintiff's requirement of the suit shop for his son Laxmi Kumar to carry on cloth business is reasonable and bonafide and comparative hardship would be caused to him and decreed the suit.
5. First appeal filed by the defendant was allowed vide impugned judgment dated 27.5.1995 by Additional District Judge, Baran.
6. This Court framed following substantial question of law:-
"Whether the findings of the first appellate Court on the points of reasonable and bonafide requirement of the plaintiff as well as comparative hardship are perverse?"
7. Section 13 (1) (h) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) provides that a decree of eviction shall not be passed unless it is satisfied that the premises are required reasonably and bonafide by the landlord for the use or occupation of himself or his family.
8. In para 4 of the plaint, it is averred that Dr. Jagdish Kumar is younger brother of the plaintiff, who is carrying on his clinic in rented premises and his landlord has already filed a suit for eviction. Jagdish Kumar is member of joint Hindu family of the plaintiff. Apart from, Laxmi Kumar-son of the plaintiff has become major and he wants to start cloth business. The suit shop is adjacent to the plaintiff's other shop where in the plaintiff is carrying on his Sarafa business. The plaintiff wants to convert both the shops in a show room so that plaintiff's brother Dr. Jagdish Kumar and plaintiff's son Laxmi Kumar may carry on clinic and cloth business respectively. In evidence, the plaintiff came out with the case that his brother Jagdish Kumar has constructed his own shops, hence his requirement exists no more, but the requirement of his son Laxmi Kumar still exists. P.W. 2 Laxmi Kumar stated that the suit shop is required by him to start cloth business. His statement was recorded on 25.7.1983. D.W. 1 Om Prakash is the defendant. According to his statement apart from one shop in possession of the plaintiff three shops of the plaintiff are on rent. Out of these three shops, one shop was let-out to Bhim Shankar during the pendency of the suit and plaintiff's son Laxmi Kumar is already working in a x-ray clinic.
9. The Trial Court held that no doubt Laxmi Kumar is working in a x-ray clinic but that x-ray clinic belongs to his uncle Dr. Jagdish Kumar and Laxmi Kumar cannot be expected to sit idle till he gets vacant possession of the suit shop. On the basis of the statement of the plaintiff himself, the Trial Court came to this finding that the requirement of Dr. Jagdish Kumar no more exists as he has constructed his own shops but the shops constructed by Jagdish Kumar cannot be and to be available to Laxmi Kumar, that these shops are situated at hospital road, where there is no shop of cloth business, hence these shops are not suitable for cloth business, that there is no evidence to show the plaintiff's intent to enhance the rent. One of the submissions made on behalf of the defendant-tenant was that since the requirement of plaintiff's brother is no more, the plaintiff's son can establish his cloth business in the shop which is in possession of the plaintiff. Rejecting this submission the Trial Court observed that it cannot be accepted that the plaintiff himself would close his own business and thus the requirement of the plaintiff son does not stand satisfied, that it is for the plaintiff-landlord to see as to how and in what manner his requirement would be satisfied and it is not for the tenant to ask him to adjust himself in the manner suggested by him, that shop in possession of the tenant Bhim Shankar is not suitable for the cloth business as that shop is of small size. With regard to question of comparative hardship the Trial Court on the basis of the statements of D.W. 3 Purshottam, D.W.4 Nemi Chand and D.W. 5 Dwarka Lal held that a number of shops in the market wherein the suit shop is situated are available on rent and thus the plaintiff-landlord could not be asked to go for rented premises.
10. During the pendency of the first appeal the defendant filed two applications to introduce subsequent events. In first application under Order 6 Rule 17 C.P.C. It was averred that the shop which was earlier in possession of the tenant Bhim Shankar has now been vacated. This application was dismissed. S.B. Civil Revision Petition No. 25/1993 against this order was disposed of by this Court on 26.5.1993. It was observed by this Court that it is admitted by the plaintiff-landlord that the vacant possession of the shop which was earlier in possession of Bhim Shankar- tenant has been obtained during pendency of this appeal. Hence the First Appellate Court shall take into consideration these facts while deciding the first appeal. Vide other application under Order 6 Rule 17 C.P.C. for amendment of the written statement, it was stated that the suit shop is required for plaintiff's son for carrying on the business of cloth but he has become a law graduate and has obtained license from the Bar Council of Rajasthan and thus his requirement no more exists. That application was also dismissed and in S.B. Civil Revision Petition No. 935/1993 decided on 2.9.1994 this Court held that the First Appellate Court without being influenced by the order rejecting the application for amendment of the written statement shall consider all supervening facts referred to above while deciding the first appeal. The First Appellate Court held that since the requirement of Dr. Jagdish Soni no more exists, the court has to consider only the requirement of plaintiff's son. The First Appellate Court on the basis of the map Ex. 13 observed that the plaintiff-landlord's requirement would be satisfied if the area of adjacent shop vacated already by Babu tailor is included in the shop vacated by Bhim Shankar. It was also held that since plaintiff's son Laxmi Kumar has started practice as an advocate, his requirement to carry on cloth business cannot be accepted and in case Laxmi Kumar wants to establish his office as an advocate, the shop vacated by Bhim Shankar would be sufficient for that purpose and thus dismissed the plaintiff's suit for eviction.
11. Mr. Ranjan learned counsel for the plaintiff-appellant submitted that the First Appellate Court did not deny the requirement of plaintiff's son but dismissed the suit on the grounds that the plaintiff may plaintiff may amalgamate both the shops vacated by Babu and Bhim Shankar as shown in the map Ex. 13 and thus his requirement would stand satisfied. It was further observed that since the plaintiff's son has started practice, his requirement to start cloth business does not exist and his office as an advocate may be established in the shop vacated by Bhim Shankar. According to Mr. Ranjan, these findings are perverse as the plaintiff gave this undertaking in writing before the First Appellate Court that on getting vacant possession of the suit shop, he will start his cloth business and he repeats this undertaking in this court also and further Section 15 of the Act protects the interest of evicted tenants and the tenant could not dictate to the landlord as to how he should adjust himself without getting possession of tenanted premises. Reliance is placed upon Raghunath G. Panhale v. Chaganlal Sundarji and Co. (1999 (2) R.C.R. (S.C.) 485). It was also contended that tenancy commenced in the year 1970, the suit for eviction was instituted in the year 1977 and more than 27 years have passed, hence plaintiff's son cannot be expected to sit idle till he gets vacant possession of the shop. On the other hand, Mr. Mandhana learned counsel for the defendant-respondent contended that requirement pleaded in para 4 of the plaint is for plaintiff's brother and son while the evidence of the plaintiff is confined only to the need of the plaintiff's son and for that the adjacent shop of the plaintiff himself is available. M. Mandhana referred three notices of the plaintiff which are Ex.1 dated 1.9.1971, Ex. 2 dated 21.4.1975 and Ex.3 dated 13.12.1976 and contended that vide first notice the plaintiff required the shop for his won use, vide notice Ex.2 required the shop for his brother while vide Ex.3 requirement pleaded was for brother and son both. While referring the reply of application under Order 6 Rule 17 C.P.C. filed before the First Appellate Court it was argued that plaintiff's son has established his office in a big hall and thus the findings of the First appellate Court are based on sound reasons.
12. I have given my thoughtful consideration to the rival submissions. The Hon'ble Supreme Court in Raghunath G. Panhale's case (supra), held that the word bonafide means that need must be honest and not be tainted with any oblique motive and the court should not proceed on assumption that requirement of landlord was not bonafide and that tenant would not dictate the landlord as to how he should adjust himself without getting the possession of tenanted premises. The court should see whether the requirement of the landlord is reasonable and bonafide so decree of eviction cannot be passed on mere whim or fanciful desire of the landlord. It is also true that the landlord is the best judge of his requirement and it is not for the tenant or the court to say that the landlord should adjust himself in the manner suggested by the tenant. The landlord cannot be compelled to squeeze himself so as to protect the tenant's continued possession in the tenanted premises. The Trial Court having taken into consideration the material evidence on the record held hat eviction cannot be denied merely on the ground that during the pendency of the proceedings, the plaintiff's son started working in a x-ray clinic which belongs to his uncle Jagdish Kumar as he cannot be expected to sit idle till he gets vacant possession. It was also rightly observed that shops constructed by Jagdish Kumar cannot be said to be available to Laxmi Kumar and further those shops were not found suitable to carry on cloth business. It was also observed that the plaintiff never intended to enhance the rent. It was also held that the shop in possession of the plaintiff is not available to his son for cloth business as the plaintiff himself is carrying on his own Sarafa business and he is not supposed to close down his business and the shop vacated by Bhim Shankar is not suitable for the cloth business. The First Appellate Court without meeting out these reasons of the Trial Court set aside the judgment and decree of eviction on the grounds, which in the facts of the instant case are in no way justified. As per map Ex.13 the suit shop is adjoining to a shop which is in possession of the plaintiff. One shop measuring 3'9" in width is adjoining to the suit shop which was vacated by Babu tailor and the shop vacated by Bhim Shankar is adjoining to this shop. The measurements of the shop vacated by Bhim Shankar are 4' in width and 14' 6" in length. The suggestion given by the First Appellate Court that the plaintiff-landlord may convert both the shops into one cannot be accepted in view of the judgment of the Hon'ble Supreme Court delivered in Raghunath G. Panhale's case (supra), as the landlord cannot be dictated in this manner to adjust himself to protect the long possession of the tenant. The other ground that the plaintiff's son Laxmi Kumar may establish his office as an advocate in the shop vacated by Bhim Shankar is also devoid of merit. It is significant to say here that this shop vacated by Bhim Shankar was offered and is still offered by the plaintiff-landlord to the tenant but this offer was declined on the ground that this is not suitable for the tenant. Then how it can be argued that this shop is suitable for the plaintiff- landlord. The submissions made by learned counsel Mr. Mandhana with reference to reply of application under Order 6 Rule 17 C.P.C. also do not carry any weight. During the pendency of the first appeal the appellant-defendant filed an application on 18.9.1993 with the averments that plaintiff's son Laxmi Kumar is doing his practice at Baran for about two years and he has established his office in a hall situated in his residential house and thus requirement of the suit shop to carry on cloth business no more exists. In reply to this application, it was averred that Laxmi Kumar became the member of Bar Association, Baran w.e.f. 2.11.1992 and it was denied that he has established his office in a hall. It was further averred that plaintiff's son Laxmi Kumar was doing no job, hence he continued his further studies and got himself enrolled as an advocate and is practicing as junior to Advocates Sh. Jagdish Prasad and Sh. Rajendra Prasad. It was also stated in additional para 5 of this reply that even for establishing his office as an advocate the suit shop is required. In additional para 10 of this reply it was specifically averred that on getting the vacant possession of the suit shop he will stop his practice and would start his cloth business. An undertaking to this effect was submitted before the First Appellate Court and this undertaking has been repeated by Mr. Ranjan in this Court. There was no reason not to rely upon this undertaking in view of the provisions of Section 15 of the Act which read as under :-
15. Restoration of possession to evicted tenant:- Where a decree for eviction of any premises has been passed by the Court against a tenant on any of the grounds specified in Clause (h) of Sub-section (1) of Section 13 and the landlord fails to utilise the premises the use of purpose for which such eviction shall have been decreed within two months of obtaining possession thereof, of, in the case of premises let out for residential purposes at any time within one year and in the case of premises let out for commercial or business purposes, at any time within five years of obtaining possession, lets the whole or any part thereof to any person than the evicted tenant, the court which passed the decree may, on the application of the evicted tenant place him in possession of the premises.
13. Thus, the provisions of Section 15 protects the rights of evicted tenant with regard to restoration of possession. In view of the entire discussion made hereinabove, it is evident that the findings of the First Appellate Court on the point of reasonable and bonafide requirement of the plaintiff are perverse. As far as the question of comparative hardship is concerned. This point was also decided against the plaintiff-landlord on the same reasonings while the Trial Court gave a specific finding on the basis of the oral testimony of the witnesses of the defendant himself that a number of shops in the same market are available on rent and thus the findings of the First Appellate Court on this point also are perverse.
14. Consequently, this second appeal is allowed, the judgment and decree dated 27.5.1995 stand set aside and the judgment and decree of the Trial Court are restored and thus the plaintiff- appellant's suit for eviction stands decreed.