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Dr. Saligram Vs. Sagar Chand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 414 of 1973
Judge
Reported inAIR1983Raj176
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1), 14, 14(2) and 22
AppellantDr. Saligram
RespondentSagar Chand
Appellant Advocate S.N. Bhargava, Adv.
Respondent Advocate R.M. Lodha, Adv.
DispositionAppeal dismissed
Excerpt:
- - 2. the trial court decreed the suit, but it was dismissed by the first appellate court holding that the plaintiff has failed to prove bona fide and reasonable necessity. 3. the first appellate court was of the opinion that the plaintiff has failed to prove bona fide and reasonable necessity on account of the following read sons: 4. the first appellate court was also of the opinion that the plaintiff having become unsuccessful in the earlier eviction suit, which was based on the ground of material alteration has filed this suit within three months of the dismissal of the earlier suit. 8. however, i find that the first appellate court has given very strong ground for disbelieving the statement of the plaintiff regarding bona fide and reasonable necessity......court. the plaintiff-landlord filed a suit for eviction of the defendant-tenant on the ground of bona fide and reasonable necessity. although the specific requirement was not specified in the plaint, but in the course of evidence it was claimed that the plaintiff who was a qualified doctor would start a dispensary in the disputed shop after retirement.2. the trial court decreed the suit, but it was dismissed by the first appellate court holding that the plaintiff has failed to prove bona fide and reasonable necessity.3. the first appellate court was of the opinion that the plaintiff has failed to prove bona fide and reasonable necessity on account of the following read sons: --(1) that the plaintiff has not specified the nature of the requirement in the plaint.(2) that the plaintiff is.....
Judgment:

G.M. Lodha, J.

1. This is a Civil Second Appeal by the landlord whosesuit has been dismissed by the first appellate court. The plaintiff-landlord filed a suit for eviction of the defendant-tenant on the ground of bona fide and reasonable necessity. Although the specific requirement was not specified in the plaint, but in the course of evidence it was claimed that the plaintiff who was a qualified doctor would start a dispensary in the disputed shop after retirement.

2. The trial Court decreed the suit, but it was dismissed by the first appellate Court holding that the plaintiff has failed to prove bona fide and reasonable necessity.

3. The first appellate Court was of the opinion that the plaintiff has failed to prove bona fide and reasonable necessity on account of the following read sons: --

(1) That the plaintiff has not specified the nature of the requirement in the plaint.

(2) That the plaintiff is not specific about the purpose for which he wants the shop to be vacated.

(3) That the plaintiff in his examination in chief stated that he required the premises for starting dispensary, but he admitted in cross-examination that heused to sit at sweetmeat shop of his father and on account of his father's death that shop is lying closed, althoughit is suitable for business of sweetmeats, and in that shop he would carry on business of sweetmeats.

4. The first appellate Court was also of the opinion that the plaintiff having become unsuccessful in the earlier eviction suit, which was based on the ground of material alteration has filed this suit within three months of the dismissal of the earlier suit.

5. Mr. Bhargava submitted that it was not necessary to specify the specific purpose for which the premises were required in the plaint, and, therefore, the judgment of the first appellate Court is vitiated. He also argued that merely because the first suit was dismissed, the plaintiff was not debarred from filing the second suit on other ground. He also pointed out that the sweetmeat shop has now been handed over to the landlord, but he conceded that after the retirement his client never did the business of sweetmeats in that shop andthe vacation has taken place only in 1979.

6. Mr. Lodha, learned counsel for the tenant has controverted the above submissions.

7. On a careful and thoughtful consideration of the entire matter, I am convinced that though there are some infirmities in the judgment of the first appellate Court, yet I feel that the appeal cannot succeed. It is true that so far as mentioning of the specific purpose for which the necessity is alleged, it is not incumbent upon the plaintiff and the suit for. eviction cannot be dismissed solely on that ground. If that would have been the only ground for dismissal of the suit for eviction, I would have no hesitation in interfering in the second appeal.

8. However, I find that the first appellate Court has given very strong ground for disbelieving the statement of the plaintiff regarding bona fide and reasonable necessity. Undoubtedly, the plaintiff had a shop and when he was to retire in 1972, at the time of his examination, he mentioned that he would do the business of sweetmeats in that shop, as his father was doing the business ofsweetmeats and he used to sit sometimes in his earlier age. Along with this he also desired that he would run a dispensary in the disputed premises. The first appellate Court was of the view that such a claim of the plaintiff was not genuine and lacked bona fides. Whatever the case might have been now it has come during the arguments that the plaintiff even after retirement has notdone any business of sweetmeats in that shop and vacated those premises in 1979, as alleged by Mr. Bhargava. It means that for a period of about 7 years even though the shop was with the plaintiff, and he was a retired personnel and had desired to do the business of sweetmeats as per his statement on oath he did not avail of the opportunity In this context and background, the rejection of his testimony by the first appellate Court has been further strengthened and fortified by his later conduct.

9. Primarily the question of bona fides and reasonable necessity is a question which is based on appreciation of the evidence. However, in case of any error of law or illegal or perverse approach to the facts of the case, thisCourt can interfere in an appropriatecase. I am constrained to observe that the plaintiff by his conduct that disentitled himself for getting a decree of eviction.

10. I am convinced that there is no error of law in the approach of the first appellate Court, and, therefore, the dismissal of the suit by the first appellate court was justified on facte and law both.

11. Mr. Bhargava pointed out that after the remission of the issue regarding comparative hardship under Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, evidence was recorded and the trial Court has given a finding in favour of the plaintiff. I am of the opinion that the evidence recorded in respect of comparative hardship under Section 14 of the said Act can be looked into only if the plaintiff first makes out a case of bona fide and reasonable necessity. In other words, if he fails to satisfy the court on the ground of bona fide and reasonable necessity on the basis of evidence which was there, he cannot supplement his submissions on the basis of evidence which has been later on recorded for proving that comparative hardship would be caused to him if the premises are not vacated. I have, therefore, refused to look into the evidence recorded by the trial Court on the question of comparative hardship either for the purpose of deciding whether comparative hardship would he caused to the landlord or not or for the purpose of supplementing the submission of Mr. Bhargava, which could not be other-wise accepted and the finding of the first appellate Court could not be challenged on the basis of appreciation of evidence recorded earlier on the relevant issue on the point of reasonable and bona fide necessity.

12. If the evidence of comparative hardship is mixed up for the purpose of ascertaining bona fide and reasonable necessity in cases, where the first appellate Court has decided earlier against the plaintiff, it would lead to a complete confusion in legal approach in the case.

13. The result of the above discussion is that the appeal fails and is dismissed any order as to costs.


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