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Soondaram and anr. Vs. Rameshwarlal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 40 of 1970
Judge
Reported in1974WLN(UC)287
AppellantSoondaram and anr.
RespondentRameshwarlal and anr.
DispositionAppeal dismissed
Cases ReferredBirdhi Chand v. Ram Prashad
Excerpt:
.....necessity have not at all been specified a general sweeping statement has been made that the shop is required by the plaintiffs for their personal necessity. he submits that this clearly goes to show that the need of the plaintiffs is not bonafide. ram prashad 1970 rlw 297. 4. i may observe straight-away that the allegation regarding personal necessity in the notice as well as in the plaint is undoubtedly very vague and sweeping but in the present case it cannot be fatal to the plaintiffs because at the time when the notice was given and the suit was filed the act did not apply to the case at all, and, therefore, no fault can be found with the plaintiffs for not making the allegation regarding personal necessity in detail. clearly taken out of the perview of the two authorities..........of cross-examination that about six months ago rameshwar was carrying on halwai business in the shop of girdhari meena. jagdish p.w. 5, who had given his son damodar in adoption to girdhari meena has also supported the plaintiffs' case that rameshwar was a tenant in girdhari's shop and has vacated the same. no doubt there is a slight discrepancy in the statements of jagdis and that of rameshwarlal as to the period during which rameshwarlal occupied girdhari meena's shop as a tenant, but i think that is not material. what is important is whether rameshwarlal used to carry on halwai business in girdhari meena's shop? this fact, in my opinion, has been established by good and legal evidence. in this view of the matter the finding arrived at by the learned district judge that the.....
Judgment:

C.M. Lodha. J.

1. This is a defendant-tenants' second appeal arising out of a suit for arrears of rent and ejectment.

2. Since on the date of the suit the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was not applied to Chomu from which this case comes, the plaintiffs claimed ejectment by termination of tenancy, though just in passing, it was also mentioned that the shop was required for the personal necessity of the plaintiffs who are brothers. During the pendency of the suit, the Act was applied to Chomu on 30.3.1967. The defendant tenants resisted the plaintiffs' suit and the trial court by its judgment dated 17.2.1969 dimissed the plaintiffs' suit for ejectment. On appeal by the plaintiffs the learned District Judge, Jaipur Dist, Jaipur decreed the plaintiff's suit. The defendants filed second appeal to this Court which was dismissed by my learned brother Kan Singh J., on 23.1.1973, on a concession being made by the learned Counsel for the appellant that the Act was not applicable to Chomu. However, it was subsequently discovered that the Act had been applied to Chomu during the pendency of the suit, as stated above. A review application was filed and same was granted, and it is how the appeal has now again come up for disposal.

3. learned Counsel for the appellants has argued that in the notice Ex. 3 terminating the appellants' tenancy as well as in the plaint details of personal necessity have not at all been specified a general sweeping statement has been made that the shop is required by the plaintiffs for their personal necessity. He submits that this clearly goes to show that the need of the plaintiffs is not bonafide. In support of his contention be has cited: Jodhraj v. Suleman 1970 RLW 170 Birdhi Chand v. Ram Prashad 1970 RLW 297.

4. I may observe straight-away that the allegation regarding personal necessity in the notice as well as in the plaint is undoubtedly very vague and sweeping but in the present case it cannot be fatal to the plaintiffs because at the time when the notice was given and the suit was filed the Act did not apply to the case at all, and, therefore, no fault can be found with the plaintiffs for not making the allegation regarding personal necessity in detail. The case is, therefore; clearly taken out of the perview of the two authorities relied upon by the learned counsel.

5. So far as the evidence part goes it is clear from the statement of Rameshwar-plaintiff No. 1 that formerly he was doing Halwai business in a shop taken on rent from Girdhari Meena & since Girdhari Meena had got the shop vacated from him he required this shop. That Rameshwar is Halwai and carries on Halwai business is even admitted by the defendant himself in his statement. He does not admit that he carried on business in the shop belonging to Girdhari. However, his witness D.W. 4 Chaudhmal has admitted in the course of cross-examination that about six months ago Rameshwar was carrying on Halwai business in the shop of Girdhari Meena. Jagdish P.W. 5, who had given his son Damodar in adoption to Girdhari Meena has also supported the plaintiffs' case that Rameshwar was a tenant in Girdhari's shop and has vacated the same. No doubt there is a slight discrepancy in the statements of Jagdis and that of Rameshwarlal as to the period during which Rameshwarlal occupied Girdhari Meena's shop as a tenant, but I think that is not material. What is important is whether Rameshwarlal used to carry on Halwai business in Girdhari Meena's shop? This fact, in my opinion, has been established by good and legal evidence. In this view of the matter the finding arrived at by the learned District Judge that the plaintiffs have established their personal necessity for the shop in question cannot be interfered with.

6. learned Counsel for the appellants has made an application Under Section 151 C.P.C. in this Court that certain facts mentioned in the application may be taken into consideration. I have scrutinised the application. It deserves summary rejection. The case was part heard on 30.1.1974 and adjourned to the next day. On 31.1.1974 on a joint request of the parties to explore chances of compromise, arguments were deferred and the case was ordered to be listed to-day for hearing. It appears that the appellants having gained time for an intended compromise made this application which cannot be a considered to be a bonafide one. Moreover such an application cannot be entertained at this stage & the facts alleged therein cannot be taken cognizance of without there being any material on record in support of them. The application is, therefore, dismissed.

7. In the result, I dismiss the appeal with costs.

8. learned Counsel for the appellants prays for grant of reasonable time to vacate the shop. In the circumstances, I grant four months' time to the appellants to hand over vacant possession of the shop & during this period the decree shall not be executed provided the appellants pay to the respondents or deposit in the executing court arrears of rent if any, within one month from today and go on paying the monthly rent thereafter within 15 days of the succeeding month.


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