Rajasthan High Court - Jaipur
Bhagirath vs Ram Prasad And Anr. on 10 September, 1986
Equivalent citations: 1987(2)WLN626
JUDGMENT Surendra Nath Bhargava, J.
1. This is defendant's second appeal arising out of a suit for arrears of rent and ejectment,
2. The plaintiff respondent 'No. 1, Ram Prasad, filed the suit, out of which this appeal arises, for ejectment of the defendants from the shop situated in Ramganj Mandi which was given on rent to them, on the ground of reasonable and bonafide necessity. The suit shop was required by the plaintiff for carrying on business by himself and members of his family after carrying out necessary additions and alterations in the suit shop, along with two other shops nearby and by making the two shops in one, he wanted to carry on business of cloth, while in another shop he wanted to carry on business of hotel and restaurant. The plaintiff had purchased the suit shop by a registered sale deed dated 27-12-1977 and filed the present suit on 6-3-1978. It was further submitted that the defendants were also defaulter as rent was not paid since June, 1977 to February, 1978.
3. The suit was contested by the defendant appellant and it was submitted that he was a tenant in the suit shop for the last more than 20 years. He further stated that he did not know that the plaintiff had purchased the shop. It was further asserted that Shri Abdul Salam Ansari or Shri Srinath used to come on behalf of the landlord to collect rent and that there were no arrears of rent. It was further submitted that the plaintiff was residing in his own house at Suket where he had got land and shop and was carrying on business of transportation, in addition to money lending, and that he had no experience of running a restaurant. Therefore, it was submitted that the suit shop was not required reasonably and bonafide by the plaintiff.
4. The trial court after framing issues and recording evidence, decreed the suit of the plaintiff. On. appeal, learned Additional District Judge No' 1, Kota confirmed the' decree. Hence, this second appeal.
5. Learned Counsel for the appellant has very vehemently submitted that the plaintiff had purchased three shops and as per the allegations made in the plaint, he was to carry on repairs and modifications for converting these three shops into two shops, for doing business of hotel and restaurant in one shop and doing the business in the other shop but the plaintiff has filed the suit for eviction only against the tenants of two shops and has not taken any proceeding to get the third shop also vacated. He has further submitted that there is variance between pleadings and proof. He has also submitted that plaintiff is carrying on business of transport and that he has no experience of doing the business of hotel and restaurant or a cloth shop. Moreover, the plaintiff has not taken any steps for getting the suit shop repaired or remodelled. He has taken no permission, from the Municipality nor any plan has been produced in. this court. He has further submitted that finding of the two courts below is arbitrary, unjust and perverse and the whole approach of the two courts below is erroneous, and evidence has not been considered in 'the right perspective. he has placed reliance on Govind Ram v. Abdul Wahq 1963 RLW 453 wherein it has been held that the requirement of the landlord !has to be reasonable and therefore, this introduces the objective element into the decision of the question. The requirement should be reasonable and bonafide. Mere wish or desire of the landlord is not sufficient nor the landlord has to establish absolute or dire necessity. He has also placed reliance on Harsukh Rai v. Shiv Charan Das 1981 RLW 49 where in also this court has observed that the court has to determine the truth of the assertion of the plaintiff and also whether the need is bonafide, and the test to be applied is an objective and not a subjective one. He has further submitted that the plaintiff has not proved as to when he sold his property in Suket and to whom. No documentary evidence has been produced. The purchaser has not been examined in court All the witnesses produced by the plaintiff are from Suket and none is from Ramganj Mandi where the suit property is situated. The courts below have not considered, the evidence of PW 3 Nanuram who has admitted that the plaintiff is living in Ramganj Mandi in a house purchased by him. He has placed reliance on Bhagwat Prasad v. Dwarka Prasad 1969 WLN 351 Jaipal Mandoza v. J.L. Martin 1975 WLN (UC) 310, Motilal Das v. Suresh Chandra Das 1978 RCR 703 and Ajeet Singh v. Inder Sharan 1979 (1) RCJ 152 where in it has been held that reasonable requirement is a mixed question of law and fact and High Court in second appeal is entitled to examine question of reasonableness. He has also placed reliance on Ramdas Mahajan v. Brahm Bhushan 1984 (1) RCJ 27.
6. He has further submitted that in second appeal this court can look into the finding with regard to reasonable and bonafide necessity and in this connection, has placed reliance on Damadi Lal v. Paras Ram ; where in after relying on earlier judgment reported in Radha Nath v. Hariappa it has been observed that if the lower appellate court over Looked some important and relevant evidence High Court can interfere in second appeal.
7. Reliance was also placed on M/s Children Choice v. G.K. Adisesiya 1982 (2) RLR 103 and lastly, on Gautam Chand Jain v. Smt. Sushila Kumari Jain 1985 (2) RCJ 230 where in the Supreme Court allowed the special leave petition filed by the tenant and held that where a tenant is running a business in the premises-since long time and no other alternative accommodation is available,-he will be hit harder in case his eviction is permitted.
8. On the other hand learned Counsel for the respondent has submitted that this court should not interfere with' the findings of fact arrived at by the two courts below and in this connection, has placed reliance on the following authorities:
(i) D. Pattabhiramaaswamy v. Hanumayya AIR 1958 SC 57; (ii) Ram Chandra v. Ramalingam ;. (iii) Karbala Begum v. Mohd. Syed ; (iv) Kshitish Chandra Bose v. Commissioner of Ranchi ; (v) Harcharan Singh v. Shivrani AIR 1981 SC 1284.
9. He has further submitted that the plaintiff purchased the suit property on 27-12-1977 and he served a notice to the tenant to vacate ore 23-1-1978 and filed the present suit on 6-3-1978. The trial court has inspected the site as well and there is no allegation on evidence with regard to the ulterior motive of the plaintiff land lord or any evidence that the suit had been filed with malafide intention to increase the rent or for some other purpose, He has also placed reliance on Mathulal v. Radhey Lal wherein their Lordships of the Supreme Court have observed that finding with? regard to bonafide need is a finding of fact and cannot be interfered with by the High Court in second appeal unless it is shown that in reaching it a mistake of law is committed or it is based on no evidence or is-such as no reasonable man can reach. Mere assertion of the landlord is not decisive. it is for court to determine the truth of the assertion. The test which is to be applied is objective test and not subjective test. Mere desire on part of the land lord is not enough but there should be an element of need and the land lord must show that he genuinely requires the suit premises.
10. He also placed reliance on Bega Begum v. Abdul Ahmed Khan where in their Lordships of the Supreme Court have observed; that connotation of the term 'need' or "requirement should not be artificially extended. He has also placed reliance on a Full Bench decision in Chhater Lal v. Mahant Samdas 1979 RLW 116 where in it has been held that even finding with regard to comparative hardship is also a finding of fact,
11. I have given my thoughtful consideration to the whole matter and have also perused the judgment of the courts below as also record of the case,
12. The plaintiff had purchased the suit property on 27-12-1977 he served notice to the tenant to vacate the premises on 23-1-1978 and filed the suit on 7-3-1978. Both, in the notice as well as in the plaint, the case of the plaintiff is that he had no business in Suket and he wanted to start business in Ramganj Mandi and, therefore, he proposed to make additions and alterations in the three shops in order to convert them into two shops and run business of hotel and restaurant in one of them and in another shop to start business of cloth. The fact remains that he has filed suit only against two tenants and he had not taken any steps/proceedings to get the third shop vacated. Moreover, the plaintiff has neither produced any evidence to show that he has applied to the Municipality for grant of permission nor has been able to show that he has sufficient funds for making alterations and for starting with the business. The plaintiff has not produced any in support of his assertions nor has produced any certificate nor the person who had purchased the property has been examined. There is no evidence that the plaintiff has got sufficient funds for making additions and alterations or that any capital for starting the new business of cloth and running a restaurant. The plaintiff has already been carrying on his business of transportation in addition to money lending and cultivation of land, where as the tenant has got no other alternative accommodation available to him where he could shift his business. Merely because the defendant has not been able to prove by evidence that the plaintiff had filed the suit for oblique motive like increase in rent, the case of the plaintiff cannot be held to be proved for his bonafide need, Mere desire of the landlord is not sufficient. But the court has to examine objectively. In the present case, the evidence on record is not sufficient to establish a reasonable and bonafide need of the plaintiff. The approach of the two courts below is perverse and erroneous. The assertions made in the plaint have been totally ignored by the courts below and they have not considered the evidence in right perspective.
13. In the result, this appeal is allowed, the judgment and decree of both the courts below are set aside and the suit of the plaintiff is dismissed but looking to the facts and circumstances of the case, the parties are left to bear their own costs.