M.C. Jain, J.
1. This is a tenant's second appeal against the affirming judgment and decree dated 9.2.1968, passed by the Civil Judge, Udaipur, a suit for arrears of rent and ejectment from a shop.
2. The respondents minors through their next friend, their father instituted a suit for ejectment of the suit shop on the ground of personal necessity. It was stated that the plaintiffs and their father are the members of the joint-Hindu family and their father manages the affairs of the family in the capacity of Karta. The plaintiffs purchased the shop through their father on 8.11.65 for a sum of Rs. 22,500/-. The tenant was informed of the sale. In para 6 of the plaint it we' averred that the plaintiff father & their guardian intends to start business in Nathdwara and for that the plaintiffs are badly in need of the suit shop and their father wants to carry on business in that shop.
3. The defendant denied these averments and in reply to para 6 stated that the plaintiffs are minors and they themselves are not in a position to carry on business and they do not need the shop. They do not reside in Nathdwara & do not have any business in Nathdwara. The plaintiff's' father carry on business at Bombay and Nathdwara where they have shops in their possession.
4. On these pleadings the following issue was framed:
(1) Whether the plaintiffs need the suit shop and are entitled to evict the defendant?
5. So far the other pleadings & issues are concerned it may be stated that they are not relevant for this appeal.
6. On issue No 1 the plaintiffs examined PW 1 Khemraj, PW 2 Dalichand, PW 3 Kishinlal, PW 4 Guljarilal and PW 5 Nandram and in rebuttal of the plaintiffs' evidence the defendant Narayanlal examined himself as DW 1 and produced five witnesses, namely, DW 2 Bbanwarlal DW 3 Minualal, DW 4 Fatehlal, DW 5 Laxmlal and DW 6 Chhogalal.
7. After consideration of the evidence of the parties the learned Munsif Nathdwara, found that the plaintiffs are in need of the suit shop and are entitled to seek eviction of the defendant and decided issue No. 1 in favour of the plaintiff. In appeal as well the learned Civil Judge found this issue in favour of the plaintiffs.
8. It may also be mentioned that in this appeal on 1.3.1968 ad interim stay order was pissed to the effect that the appellant shall not be dispossessed from the suit shop, but as the plaintiffs got the decree executed so this ad interim stay order was vacated on 18.7.1968 During the pendency of this appeal the Rajasthan Premises (Control of Rent and Eviction)(Amendment) Act, 1976, came into force and Sub-section (2) to Section 14 was added with the result that the following issue was framed,-
Whether having regard to all the circumstances of the case including the question whether any other reasonable accommodation is available to the landlord or the tenant greater hardship would be caused by passing a decree than be refusing to pass it? (Onus on the plaintiff).
And the said issue was referred for the to all the lower application court with the direction that the lower appellate court shall record additional evidence of the parties and shall return the evidence to this Court together witch its finding thereon The lower appellate court after recording the evidence of the afore said issue Wherein it has been found that grater hardship Would be caused to the land lord-plaintiffs in refusing to pass the decree and the issue was found in favour of the plaintiffs.
9. In this appeal, on behalf of the defendant, it has been vehemently submitted that there was no pleading of the plaintiffs that they need the wit shop reasonably and bonafide. The essential particulars of the requirement were not stated by the plaintiffs in the plaint and there was no issue to
10. In support of the first contention reliance has been placed on the decision Moot Chand v. Kanwarlal and Anr. 1974 WLN (UC) (sic)96. As regards the second contention the learned Counsel referred to the bock Fundamentals of Rent Control Legislation in India by R.C. Kochatta 1966 (July) Edition page 191 wherein on the basis of decision of Suhila v. Santo Kumar 1957 M.P.L.J. 593 it is stated that the father cannot be held to be the member of the minor landlord's family for the purpose of need fox occupation as he himself is dependent on his father.
11. The learned Counsel for the plaintiff respondents on the other hand submitted that the plaintiffs and their other constitute the joint Hindu family and the business which will be carried by their father will be joint family business and as such the plaintiffs need the premises not only for their father, but for themselves as well and further so far as the plaintiffs' pleading is concerned, the plaintiff have specincally stated that they are badly in need of the suit shop for the purpose of business and it was not necessary to make mention of the words reasonably and bonafide. When the plaintiffs need the suit shop badly, it can be inferred from this that the suit shop is required reassembly and bonafide More over, he urged that bath the parties had led evidence and went to trial knowing fully well that the plaintiffs' averment is with regard to their personal requirement o the nature of pleading, under the circumstances of the ease, is of no significance and consequence The learned Counsel referred to case in which it can be said that the pleadings were not quite satisfactory, still when the parties had led evidence, the questions bon had been examined by the court as to the reasonable and bonafide requirement and decided the question on the basis of the evidence on record. He farther submitted that the question of personal necessity is a question of fact and there the courts below have f mod in favour of the plaintiffs so that finding is binding & cannot be disturbed in this appeal and it is not open to the appellant to challenge the concurrent finding of the two courts below.
12. The learned Counsel as to the first contention referred to Roop Nurain v. Hira Lal 1963 RLW 90; Jodhraj v. Suleman 1970 RLW 170 and Birdhichnd v. Ram Prasad 1970 RLW 297. For the second contention he it referred to two casts of this Court Lal Chand v. Mohani Bai 1962 RLW 693 and Radhavallabh v. Damodardas 1964 RLW 587.
13. I have given my best consideration to the contentions advanced before me by both the sides.
14. At the out set f may state that the question whether the suit shop is reasonably and bonafide required by the plaintiffs, is essentially one of fact and a second appeal would not lie unless it is shown that the question of reasonableness or bonafide was not considered by the court below, to is true that in this appeal this question has been raked that neither there was requisite pleading by the plaintiffs nor there was issue with regard to the ground of eviction as contemplated in Section 13(1)(h)(i) that is, in the language of this provision, but still the essence of the pleading and issue has to be considered. The word used by the plaintiffs in the plaint is that they need the suit shop 'badly' From the use of this word 'badly' it can be said that what the plaintiffs are framed to convey is that their requirement is reasonable and bonafide. Further in issue No 1 it also finds mention along with the plaintiffs' need whether the plaintiffs are entitled to evict the defendant. Thus, the words in which the issue No 1 is framed, it cannot be said that the requirements of Section 13(1)(h)(i) have not been put in. So, I do not find that necessary pleading was not made by the plaintiffs or that proper issue was not struck. Further in Roop Narain's case it was observed that the de feet in the pleading was, however, removed as soon as the plaintiffs came into the witness box and gave a detailed explanation as to how the necessity had arisen, and they were cross-examined on this aspect in detail The plaintiffs' whimsies were also cross-examined at length. Then his Lordship Dave, J, as he then was, referred to the case of Naguhai Ammal v. B. Sharma Rao : 1SCR451 and placed reliance on the following observations of their Lordships of the Supreme Court, who took into consideration Lord Dunedin's observation in Siddik Mohamtned Shah v. Mst Saran 1930 PC 57 (1) that no amount of evidence can be looked into upon a plea which was never put forward:
the true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the which of the parties and on which they had no opportunity of evidence. But the rule has n) application where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.
The above principle fittingly applies to the present case as well, as the parties went to trial and adduced evidence on the question as to whether the plaintiffs need the suit shop reasonably and bonafide. Thus, in my opinion, the question need no further consideration, b it would be proper that the case law cited by both the parties may further be noticed.
15. In Mool Chand's case (supra) cited on behalf of the application on the averment in the case, it was considered proper that an additional issue may be framed, so, his Lordship G. M. Lodhoa, J, framed the additional issue in the light of the provision contained in Section 13(1)(h)(i). It was considered that the pleadings of both the parties were not properly drafted and on considering the requirements of law additional issue vas struck. The plaintiffs plea was considered to be non-specific In that case no issue was struck by the court regarding bonafide requirement of the premises and the deferent it's application for framing of the issue was rejected and the courts below considered that there was no specific denial regarding plaintiffs' need so in these facts and circumstances of the case an additional issue was struck. It is true that in this case it has be in observed that there should be specific allegations regarding personal necessity fulfilling the requirements of law. But this authority is not of much help in view of what I have discussed above
16. In Jodhraj's case (supra) the plaintiff averred that he needs the suit shop for his son who wishes to carry on baseness in that shop. On this issue evidence was considered and it was found that the evidence was also discrepant and further it was observed that the averment in the plaint for personal necessity is vague and it was the duty of the plaintiff to have stated in specific terns that the ship in question is required by his son, who was living with him, to carry on a particular basinets and it was observed that it is the be mien duty of the plaintiff, who wants to get the premises vacated for his own use or for the use of his family to allege and prove that the necessity for the premises is both reasonable and bonafide and that cannot be done unless the landlord in that first instance alleges what business he proposes to carry on in the shop It was further observed that the legislature has purposely used the ward 'reasonable and bonafide' and, therefore, it is the duty of the landlord in each case to prove that his personal necessity for the premises is genuine and is thus both 'reasonable and bonafide.' It was held that the averment in the plaint is most vague and indefinite and in the opinion of his Lordship it does not embrace within itself the necessity, which the plaintiff has tried to prone during the course of evidence. It was further observed that that apart the evidence itself is discrepant, besides being vague and indefinite. It would appear that after consideration of the evidence on record, it was found that the plaintiff has failed to prove his reasonable and confide person it necessity, Similar u the position in the case of Birdhichand v. Ram Prasad (supra). In that case as well the plaintiff simply has stated that he wants the suit shop for his own sitting. It was not stated that he himself wants to carry on any particular business in the suit shop and it had come in evidence that there was one other shop of die plaintiff, which is subsequently let out In the facts and circumstance of the case it was observed that mere as creation on the part of the landlord that the premises are required for his own use or business is not sufficient. Nature of the requirement must be disclosed so that not only the tenant may have an opportunity to rebut it, but the court may also in the light of the circumstances of each case be able to put it to the test of reasonableness and bonafide under the garb of personal requirement, it is not open to the landlord to circumvent the law and it is the duty of the court to see that the landlord is not seeking eviction on the false pretence and for ulterior purpose.
17. If the evidence of both the parties is examined in the present case, it cannot be said that the plaintiffs need is not reasonable aid bonafide. From the plaintiffs evidence it is well established that the plaintiffs or their father have no shop at Nathdwara. The shop was purchased by the plaintiffs father in their name for a sum of Rs. 22,500/- vide registered sale-deed Ex. 1 dated 8-11-65 & the suit was instituted on 4-3-66.The plaintiffs' evidence has been relied upon by both the courts below and it has come in the plaintiffs evidence that Khemraj, the plaintiffs, father wants to carry on business at Nathdwara, He had business of sarafa in Bombay. The suit shop is situated in Sarafa Bazar, Nathdwara, and row Khemnj wants to carry on Sarafa business at Nathdwara. It will not be out of place to mention here that after eviction of the shop in execution of the decree Khemraj did start his business and that matter has been considered by the first appellate court on remission of the case after framing of the additional issue by this Court on comparative hardship. It may be stated that fortunately in this case reasonableness and bonafide requirement can be tested as to how the suit shop has been made use of after having been vacated by the defendant Thus, considered from an) point of view, that is, there were concurrent findings of the two courts below regarding personal necessity of the plaintiffs, no appeal lies and even on consideration of the pleadings, issues and evidence on record, it cannot be said that the requirement, of Section 13(1)(h)(i) have not been satisfied in this case.
18. Thus, I find no force in the first contention of the learned Counsel for the appellant.
19. I may now take up the second contention.
20. In the second contention as well, in my opinion, there is no force m view of the not re of the pleadings and the evidence on record It may be stated that the plaintiffs have come forward with the case that they need the suit shop for themselves as their father wants to carry en business in it and they have specifically come with this case that the plaintiffs along with their father constitute a joint Hindu family and their father is the 'karta' of the family and manages the affairs of the family and the joint family property as 'karta'. In the sale-deed Ex. 1 there is a recital that vendees, that is the plaintiffs, are minors and their father being the number of the joint family carry on business with the joint capital There is no doubt that the plaintiffs & their family constitute the joint Hindu family of which Khemraj is the 'karta'. It is true that what is stated in the plaint is, that their father will sit in the suit shop and will carry on business, but still it v would be a joint family business and in this manner it cannot be said that the plaintiffs do not need the suit shop for their use of occupation. They will be in occupation of the suit shop through their father wherein the father will carry on business on behalf of the joint Hindu family. It may also be stated that it has come in the defendant's evidence that some of the plaintiffs also sit in the suit shop According to the defendant some one of the plaintiffs goes to Bombay and some one other sits in the disputed shop at Nathdwara. Thus, the user of the shop by the plaintiffs is established from the defendant's evidence, which has bee a recorded after the remission of the issue by this Court. Thus, from the evidence it can be found that the plaintiffs themselves need the suit shop for business. That apart I am unable to agree with the contention of the learned Counsel for the appellant that the father does not constitute the family of the minor landlords. In the book Fundamentals of Rent Control legislation in India referred to by him, there is a reference of the decision of the Madhya Pradesh High Court, but the report has not been made available to me, on what reasoning what has been found, cannot be considered in the absence of the report Clause (h)(i) of Section 13 of the aforesaid Act, is reproduced hereunder for facility of reference,
(h) that the premises are required reasonably and bonafide by the landlord
(i) for the use or occupation of himself or his family.
21. The contention of the leaned Counsel isbased on the word 'his', which is underlined above. According to the learned Counsel the need should be of the Landlord himself or his family and in the word family father cannot be included, as father is not dependent on his minor son. On the expression 'family' we have two decisions of our own High Court stated supra. In Lalchand's case (supra) his Lordship I.N Modi, J., considered the question in para 9 and observed as under:
While it may be accepted, therefore, particularly having regard to the social habits and conditions and the modes of living in our own country that the intention of the Legislature would be best served by putting an extensive meaning on the word 'family' as used in our Rent Control Act, it would still be a question as to how far it would properly be permissible to extend the meaning of this word and where one may have to stop. For, if the intention of the Legislature was that the expression was to include all blood relations or other relations, then there was nothing to prevent the Legislature from saying so. Therefore, the word 'family', if I may say so with all respect, cannot be used to include all such relations without any qualification whatsoever, and some sort of a limitation will have to be put on it to prevent an utterly promiscuous use being made of it. As I look at the matter, broadly speaking, the word 'family' would include a person's wife or husband and their children; or his or her parents living with them as members of a com ion household; his or her brothers and sisters constituting a joint Hindi family a widowed daughter or her children, a deceased brother's wife or her children, all these being dependent on the living with him or her. But again, broadly speaking, it will be hardly permissible to include other relations as falling within this phrase except perhaps under very vary exceptional circumstances which for obvious reasons it is impossible to mention exhaustively. In its ultimate analysis, therefore, whether a person is a member of the family of another is a question which must be decided haying regard to the surrounding circumstances of a case.
22. It was also observed that the expression 'family' has not been defined in the Act and it does not give any guidance in interpreting this word. It was also stated that the expression 'family' is a very elastic one, and can be interpreted sometimes in a narrow sense, which simply means the two parents and all their children, and at other times it is used in a very comprehensive sense so as to include within its meaning a body of persons descended from a common ancestor as well as those united together owing to a the of marriage or even affection and living under one roof and forming, as it were, a single household. On the facts of that case it was found that Lal Chand's widow, that is, the plaintiff Mohinibai's Bhojai and children and mother-in-law of Lal chand's widow, are not the members of Mohinibai's family. There was to evidence to the effect that they ever Jived together under the same roof or management.
23. In Radhavallabh's case (supra) after reviewing the English and Indian case law, on Facts it was found that the nephew was not the member of the landlord's family.
24. In the present case what I am called upon to examine is not this question as to whether father is the member of the family or not, as it is not in dispute that father, along with the plaintiffs, is member of a family. The question of economic dependency of the alleged member on the landlord is out of question in the present case. The question to be expression by me is as to whether a minor landlord has a ground available to him for eviction with regard to the requirement of his father. According to the learned Counsel for the appellant this ground is not available to him as miner cannot have family of his own, so it cannot be said that he needs the premises for his family. Such an interpretation of this provision, in my opinion would not be in harmony with the intention of the Legislature. It cannot be conceived that the Legislature intended to deprive a minor landlord to sue for eviction on tall ground that he reeds the premises for his father. It may be stated that the words 'his family' are to be is turreted in this sense that the person's family is that family, of which he is a member and in this way it can be said that who so ever may be the members of the family of which minor is a member and if the premises are needed for them, then he needs the premises for his family. The expression family should be construed in a comprehensive sense. Thus, whoever constitute one house-hold it can be said that of at is the route-bold of each individual member who has constituted the same. Thus, to me it appears that the second contention is also devoid of force, on both the grounds considered above, that is, on facts it has been found that the plaintiffs are in need of the suit shop for themselves and also on the ground that they have got a right to sue even when the so it shop is needed for being used by their father.
25. Learned Counsel for the appellant further contended that the first appellate court has erred in deciding the remitted issue against the defendant and has primarily considered the question of comparative hardship on the basis of the development, which took place after vacation of the suit shop by the defendant. The learned Counsel submitted that the decree itself is under challenge and the curt was not competent to consider the improved position of the plaintiffs after the execution of the decree. The learned Counsel urged that the question of comparative hardship should have been examined as on the date of the suit and not therefrom. It was wrong on the part of the learned first appellate court to have considered as to how-much investment has been made in business by the plaintiffs' father and what outstanding are there, which would not be realized easily in case the plaintiff' are put out of the possession of the suit shop and it was also not proper on the part of the first appellate court to consider that the defendant is 75-80 years old and is not in a fit condition to carry on business.
26. In this connection it may be stated that the question of comparative hardship has to be examined in the light of all the circumstances including the question of availability of alternative accommodation by the landlord and the tenant. The respondents learned Counsel in reply first submitted that the finding of this issue is also a unding of fact and is not open to challenge and in support of this contention he placed reliance on Subodh Gopal Bose v. Brojendta Kishore Roy : AIR1954Cal90 and Ishwara Bhatta and Ors. v. Iswara Bhatta and Ors. AIR 1562 Mysore 61 and he further contended that the leaned first appellate court his not misdirected itself in considering all the circuit acnes of the case, which have come on record before examining the question of comparative hardship for pissing or refusing the decree, including the circumstance of alternative accommodation.
27. On a careful consideration of the respective contentions, am of the opinion that the finding on the question of comparative hardship has been surreally arrived at after thorough scrutiny of evidence of both the parties as such it is riot necessary for me to consider the question whether the 'finding on comparative hardship can be challenged in second applier. It ma be stated that the first appellate court had examined the question of availability of alternative accommodation It was fond that there was no; alternative accommodation available to the plaintiffs at Nathdwara, whereas; from the defendant's evidence, it is raveled that the defendant had made use of alternative accommodation and supersede this fact that there was any shop of himself and his brothers, which, according to the defendants evidence, was eying closed on account of some dispute between the brother's It has also come in defendant's evidence hat the defendant's son Shankelal was sitting in the shop on Kesulal, his brother in law where the defendant also und to sit. As considered above in this case, the test of subsequent user and subsequent position of the parties, is available General y such a test is not available in cases, where execution of eviction decrees is staged, but in the present case, as parties have and evidence after eviction from the shop, in my opinion, the evidence can be made use of for testing the plaintiffs' requirement, as well as comparative hardship can be considered on that basis. If the very provision, according to which the additional issue has been framed by this court, is considered then the circumstances in their entirety are to be considered before passing or refusing the decree for eviction including the circumstances of availability it of alternative accommodation. Normal, the position, as obtaining at the time of the institution of the suit, has to be seen. In this case even if the question of comparative hardship is to be considered as on the date of the suit, startle it cannot be said that greater hardship would not have to been caused to the plaintiffs in refusing the decree, than by passing a decree in their favour. The plaintiffs were badly in need of the suit shop for business. The business at 'Bombay was closed and the suit shop was purchased for running business at Nathdwara They needed the shop for carrying on Sarafa business in Sarafa Bazar so their hardship was greater, as compared to the defendant's hardship and for determining the comparative hardship the evidence led by the parties after vacation of the suit shop can atleast be taken into consideration for testing the plaintiffs' case. The requirement finds its manifestation in the business set up by the plaintiffs' father investing huge funds to the tune of Rs. 70,000/- to Rs. 80.000/- and on that ground greater hardship will also arise, as it has come in evidence that about Rs. 50,000/- are outstanding, which would not be realised, in case the plaintiffs are ousted from their suit shop Thus, I find no merit is the contentions advanced on behalf of the appellant.
28. No other point has been pressed before me.
29. In the result, I find no force in this appeal, so it is hereby dismissed with costs.