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Shiv Bhagwan Viday Shankar Vs. Thakaramal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second No. 132 of 1972
Judge
Reported in1981WLN(UC)121
AppellantShiv Bhagwan Viday Shankar
RespondentThakaramal and anr.
Cases ReferredBirdhichand v. Ram Prashad
Excerpt:
.....i am unable to hold that the plaintiff has proved any reasonable and bonafide necessity for the suit shop for shifting his business which he allegedly carried on some rented shop at the time of institution of the suit. the case that the plaintiffs required the shop in dispute for starting a new business cannot be upheld as it is contrary to the case set up in the plaint by them.;rajasthan premises (control of rent & eviction) act, 1950 - sections 13(1)(h) & 14(2)--greater hardship--reasonable & bonafide necessity not proved--held, question of comparative hardship is of no avail to landlord--evidence recorded & finding given are of no value.;as the plaintiffs have failed to prove the reasonable and bonafide requirement of the suit shop for their own business, the..........courts below.2. the case of the plaintiffs is that they are father and son and they purchased the suit shop, situated near ghantaghar at churu, for a sum of rs. 11,000/- by means of a registered sale deed dated december 23, 1963 from hariprashad. in para 5 of the plaint, it has been pleaded that the plaintiffs were carrying on their business on a rented shop, which was comparatively much smaller than the shop in dispute and was situated in a less important locality. the plaintiffs and members of their family desired to shift their existing business to the shop in dispute. the defendant was asked to vacate the shop but as he failed to do so, a notice terminating his tenancy was served on july 9, 1964, and as the defendant failed to vacate the shop inspite of servics of notice upon him,.....
Judgment:

D.P. Gupta, J.

1. This second appeal arises out of a suit for ejectment of the defendant from a shop, situated in the town of Churu which has been decreed by both the courts below.

2. The case of the plaintiffs is that they are father and son and they purchased the suit shop, situated near Ghantaghar at Churu, for a sum of Rs. 11,000/- by means of a registered sale deed dated December 23, 1963 from Hariprashad. In para 5 of the plaint, it has been pleaded that the plaintiffs were carrying on their business on a rented shop, which was comparatively much smaller than the shop in dispute and was situated in a less important locality. The plaintiffs and members of their family desired to shift their existing business to the shop in dispute. The defendant was asked to vacate the shop but as he failed to do so, a notice terminating his tenancy was served on July 9, 1964, and as the defendant failed to vacate the shop inspite of servics of notice upon him, the suit for ejectment on the ground of bonafide and reasonable personal necessity and also on the ground of defaults in payment of rent was filed.

3. The defendant's case is that the plaintiffs never carried on any business in the town of Churu nor they intended to carry on any business there and that while plaintiff No. 2 was a minor, Plaintiff No. 1 was employed elsewhere and that the plaintiffs or the members of their family did not require the suit shop reasonably and bonafide for their use or occupation. It has also been stated by the defendant that he sent money-orders in respect of rent from time to time and that he did not commit any default in payment of rent and that even the money-order coupons, which were returned back showed that the plaintiffs were residing outside.

4. Both the courts below found the issue relating to defaults in payment of rent against the plaintiffs, as the defendent had tendered rent from time to time by money orders which were refused by the the plaintiff. However, on the ground of reasonable and bonafide personal necessily, both the courts below found in favour of the plaintiff. The trial court held that the plaintiff No. 1 had his business in Assam but he desired to start his new business in Churu. According to the trial court, an existing business was not necessary and the necessiiy of the plaintiff for starting a new business could also be held to be reasonable and bonafide, in the circum stances that the plaintiffs had purchased the shop in dispute for carrying on their own business. The first appellate court endorsed the finding arrived at by the trial court and observed that the statements of P.W.1 and P.W. 2 were sufficient for coming to the conclusion that the plaintiffs had proved their bonafide and reasonable need for the suit shop.

5. In this appeal, learned Counsel for the appellant has assailed the finding recorded by the first appellate court on the question of reasonable and bona fide personal necessity of the plaintiffs for the suit shop and it is urged that the finding recorded by the first appellate court cannot be held to be binding on this court, as the case held proved by the lower courts is contrary to the case pleaded in the plaint. As I have already pointed out above, the trial court went on the premise that if a person had no existing business but even if he desires to start a new business of his own, then also he can have a reasonable and bonafide necessity for a shop, for starting his new business. According to the trial court, the main question which required consideration in this case was as to whether the plaintiffs would actually start a new business and whether they could do their business at Churu. The argument which prevailed with the trial court was that the plaintiff was a businessman, who was doing his business in Assam and there is no reason why he could not start his new business at Churu, when he himself was certain that he wanted to do his business, there was no reason to disbelieve his testimony.

6. I am constrained to observe that while the trial court totally lost sight of the case pleaded in the plaint and went on to make out an absolutely new case for the plaintiffs, which was not pleaded by them, namely, that the plaintiffs desired to start a new business of their own at Churu, yet the first appellate court has dealt with the matter very cursorily. The discussion regarding issue No. 2 in this judgment of the first appellate court is extremely casual and does not show the application of mind by that court to the matter in issue The learned Additional District Judge, Churu has vaguely upheld the rinding arrived at by the trial court and added that if the statements of PW 1 & PW 2 are believed, then they were sufficient for coming to the conclusion that the plaintiffs have proved their bonafide & reasonable need which is 'explained by the plaintiffs' come of the other witnesses'. I must observe that the casual manner in which the first appellate Court has proceeded to record its finding is rather strange. Neither the names of the witnesses nor what they have stated, which the court intended to accept, has been specified in the judgment of the first appellate court. The defendant appellant's argument that neither in the plaint nor in the plaintiff's statement, the specific business which the plaintiffs intended to do in the suit shop, has no doubt been mentioned but has not been considered. The argument that unless what is pleaded is proved a decree for ejectment could not be passed, has also been noted by the first appellate court But no satisfactory answer to these questions has bee a recorded.

7. I have already observed above, the case pleaded in the plaint was that the plaintiff was already carrying on business in a rented shop which was smaller than the suit shop and was not situated in a good locality and, therefore. the plaintiff; desired to shift their existing business to the shop in dispute, which they had purchased recently. Yet, from a consideration of the evidence led by the plaintiffs it does not appear as to whether the plaintiffs were carrying on any business at all on a rented shop on May 10, 1965, when the suit was riled by them According to PW 1 Thakarmal and which is corroborated by PW 2 Sitaram, the shop of Sitaram PW 2, situated near Ghantaghar Kua, was taken on a monthly rent of Rs. 10/- with effect from August 1, 1965. The plaintiff Thakarmal stated that before that his father was carrying on business under Gangaji's temple. In cross-examination he stated that Gangaji's temple is situated in Sabzi Bazar and he had taken the shop from Hanuman Prasad on rent, although the shop in question belonged to Gangaji's temple. According to plaintiff Thakar, he did not know who was the Pujari of the temple of Gangaji's but Hanuman Prasad was looking after the shops of the temple Now, Hanuman Prasad has been examined as PW 3, but did not say a word that he was looking after the shops of Gangaji'a temple. According to Hanuman Prasad PW 3, the shop situated under Gangaji's temple was taken of rent by Thakurmal and his father Partumal on January 1, 1965 and the same was got vacated by him in April 1965, because he required the shop for the business of his sons. Thus, from the evidence of the plaintiff's own witnesses, it is clear that during the period from May to July, 1965, the plaintiffs were not carrying on any business on any shop.

8. The other important argument which was specifically reised before the first appellate court and which it has failed to decide that the plaintiffs have vaguely said that they were carrying on business and that they will do business on the suit shop, without specifically stating as to business in which commodities was being carried on by the plaintiffs, which they desired to shift to the shop in dispute. In order to convince the court about the reasonable and bonafide necessity of the plaintiffs for the business premises, it is ordinarily expected of the plaintiffs to specify the nature of the business which they intended to carry on, so as to justify their requirement and to assure the court that the alleged requirement of the plaintiff was reasonable and bonafide If the plaintiffs do not disclose the nature of the business which they intend to carry on, how can they assure the court that their requirement was reasonable as well as bonafide?.

9. In Jodhraj v. Suleman 1970 RLW 170, a learned single Judge of this Court held that it is the bounden duty of the plaintiff, who wants to get the premises vacated for his own use or for the use of his family, to allege arid prove that the necessity of the premises is both reasonable and bonafide and that cannot be done unless the landlord in the first instance alleges what business he proposes to carry on in his shop. It was held in that case that the averment in the plaint for personal necessity was vague, as it was the duty of the plaintiff to have stated in specific terms that the shop was required to carry on a particular business. To accept the reasonable and bonafide necessity of the plaintiff even in the absence of his giving the specification of the nature of the business required to be carried on by him on the shop in dispute, would amount to allowing the landlord to claim eviction on most flimsy and unsubstantial grounds

10. In another case, Birdhichand v. Ram Prashad 1970 RLW 297, the suit for eviction on the ground of personal requirement of the plaintiff was dismissed by this Court as the plaintiff failed to disclose the nature of the business or the purpose far which he required the shop and it was held that the requirement cannot be held to be bonafide when the particulars of the business desired to be carried on by the plaintiff were not disclosed by him. In that cat also, the plaintiff made a vague statement that he required the premises for starling his business, without disclosing the nature of the business desired to be carried on or the purpose for which he required the shop. It was held in that case that mere assertion on the part of the landlord that the premises were required for his own business or use is not sufficient, unless the nature and particulars of the requirement are disclosed.

11. In the present case, the first appellate court completely lost sight of this aspect of the case, to which his attention was specifically drawn by the learned Counsel for the defendant appellant. It is settled law that a plaintiff cannot get a shop vacated merely on a false pretence or for ulterior motives, unless the reason for which the shop is required by him carries conviction with the court and on the strength of the case pleaded and proved by him, the court is able to hold that the requirement of the plaintiff is reasonable as well as bonafide. In the present case, the case pleaded has not been proved by the evidence on record, namely, that the plaintiff was carrying on business on a rented shop and he desired to shift his existing business to the shop in dispute, because the rented shop was smallar in size and was not situated in a good locality. The shop under the Gangaji's temple U said to have remained in the tenancy of plaintiff's father for four months only and was vacated in April, 1965. No evidence has been led on behalf of the plaintiffs to show as to whether they carried on their business at Churu at all. The admitted case of the plaintiffs is that plaintiff No. I was carrying on his business in Darjeeling. Then Sitaram's shop is said to have been taken on rent on August 1, 1965. But that was after the institution of the suit and it appears that the shop was taken on rent; if at all, merely for the purpose of creating evidence that the plaintiff was carrying on business on a smallar shop which was not sufficient for his business What type of business was carried on by the plaintiffs on Sitaram's shop has not been disclosed?. The commodities sold or the extent of business has not been disclosed so as to convince the court that the plaintiffs required a bigger shop, situated in a better locality for their own business. From the statement of PW 3 Hari Prashad, it appears that the plaintiff Thakarmal as well as his father were doing cloth business at Darjeeling for the last several years. Merely because the plaintiffs had purchased a shop at Churu did not entitle them to get the same vacated from the tenant, who was in occupation of the same from even prior to their purchase, merely on a flimsy pretext that the plaintiffs intended to shift some 'business' which they were carrying on in Sitaram's shop. The trial court held that the ^ plaintiffs intended to start a new business, which is against the contents of para 5 of the plaint and the first appellate court merely vaguely endorsed the finding recorded by the trial court. Thus, there is no legal finding of fact recorded by the fir; t appellate court and that is why I had to consider the entire evidence on record. Thus, the finding of reasonable and bonafide necessity of the plaintiff is vitiated for the reasons mentioned above and cannot be upheld.

12. After a thoughtful consideration of the evidence of all the witnesses of the plaintiffs, I find that it has not been proved that the plaintiffs were carrying on any business at the time of the institution of the suit which they intended to shift to the shop in dispute. I am unable to hold that the plaintiff has proved any reasonable and bonafide necessity for the suit shop for shifting his business which he allegedly carried on some rented shop at the time of the insitution of the suit. The case that the plaintiffs required the shop in dispute for starting a new business cannot be upheld as it is contrary to the case set up in the plaint by them.

13. During the pendency of the second appeal in this Court, an issue of comparative hardship was framed and was remitted to the Additional District Judge. Churu and on which evidence was led by both the parties The learned Additional District Judge has returned the finding on the basis of such evidence that greater hardship would be caused by refusing to pass a decree than by passing a decree for ejectment. However, as the plaintiffs have failed to prove the reasonable and bonafide requirement of the suit shop for their own business, the further question of comparative hardship is of no avail to them and the evidence recorded in that respect and the finding given by the Additional District Judge in respect theieof are devoid of any value.

14. In the result, the appeal is partly allowed, the decree for ejectment passed by the two courts below is set aside and the plaintiff's suit is dismissed to far as it relates to ejectment. In the circumstances of the case the parties are left to bear their own costs throughout.


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