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Om Prakash Vs. Smt. Chand Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 648 of 1968
Judge
Reported in1972WLN878
AppellantOm Prakash
RespondentSmt. Chand Devi
DispositionAppeal dismissed
Cases ReferredGujarat High Court Kasturbhai v. Mohanlal
Excerpt:
.....in respect of residential portion proved but nature of business not disclosed for which shop was required--held, non-disclosure is not fatal & plaintiff cannot be non-suited--tenancy being indivisible plaintiff is entitled to ejectment from entire premises.;the plaintiff cannot be non-suited on the ground that she has not been able to establish her requirement for the shop as reasonable and bonafide for her failure to disclose the nature of business proposed to be carried in that shop.;since she has established her requirement as reasonable and bonafide with regard to the residential portion, she is entitled to evict the defendant from the entire premises. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile..........the shop for his personal necessity. in the course of evidence, he tried to prove that the shop was required for his son gafoor. gafoor himself stated in his statement that he would do business either in cycles or in dyeing. another witness nanu, son-in-law of the plaintiff suleman stated in cross-examination that gafoor wanted to do business in 'kirana,' whereas ghisu pw 3 stated that the shop in question was required by suleman and he would do some business in the shop. in view of this evidence, the learned judge did not believe the evidence and the non-disclosure of the nature of business in the plaint assumed importance. in the present case, as indicated above, there has been no inconsistency in the statements of the plaintiff's witnesses. the nature of business was not.....
Judgment:

J.P. Jain, J.

1. This is a second appeal by the defendant and it arises out of a suit instituted by the respondent Smt. Chand Devi for the eviction of the appellant from the suit property and for arrears of rent.

2. Smt. Chand Devi purchased a building bearing AMC No. 16/394 situated near Madar Gate Ajmer on 16-11-1962. The suit property forms part of this building and consists of one shop, three Kothries in the ground floor and two tinsheds on the first floor. Admittedly, Om Prakash was the tenant of the previous owner and he attorned to Smt. Chand Devi as his landlady. He paid rent upto 31-5-65 at the rate of Rs. 21/- per menses. Plaintiff Smt. Chand Devi sought eviction of the defendant Om Prakash on the ground that she required the shop and the residential portion for use and occupation of herself and the members of her family. Inspite of notice and the tenancy having been determined, the defendant tenant did not surrender possession. Accordingly, on 17-7-1965 she instituted the suit in the court of Munsif, Ajmer City (west) claiming eviction of the defendant from the suit property and Rs. 53(SIC)20 as arrears of rent and mesne profits. She also prayed for mesne profits at the rate of Rs. 21/- per menses from the date of the suit.

3. Om Prakash, while admitting the tenancy, alleged that the requirement of the plaintiff was not reasonable and bonafide and it was only on account of her desire to get more rent.

4. After trial, the learned Magistrate accepted the case of the plaintiff and decreed her suit by his judgment dated 31-1-68 On appeal by the defendant Om Prakash, the findings of the learned trial Judge were upheld and the appeal was dismissed on 28th August, 1968. It is this decree that has been challenged before me in second appeal.

5. Shri S.N. Bhargava, learned Counsel for the appellant contended that the plaintiff in not having disclosed the nature of the business her husband or her son proposed to do in the shop, is not entitled to a decree for ejectment of the defendant from the suit shop. He has placed reliance on Jodhraj v. Suleman 1970 RLW 170, Birdhichand v. Ram Prashad 1970 RLW 297 and an unreported decision in Ramchand v. Naraindas and Ors. Second Appeal No. 82/66 decided by Hon'ble Shinghal J. on August 11, 1967. On the other hand, Mr. Sunderlal Sogani learned Counsel for the respondent, while admitting that the plaintiff had not disclosed the nature of the business that her husband and her son wanted to do in the shop in question argued that in the circumstances of the case, it is not fatal to the case. It has been urged by him that the residential, portion and the shop are the subject matter of one tenancy. The plaintiff has been able to establish that she has been living with her family in a rented house and her requirement is reasonable and bonafide. The tenancy being indivisible, she is entitled to seek the eviction of the defendant from the suit property even if it is found that the plaintiff has not been able to prove her requirement as bona fide for shop. In support of this contention, he relies upon Ramdayal v. Ram Narayan 1952 RLW 315.

6. I have considered the rival contentions. It is true that the plaintiff failed to disclose the nature of business, she wants her husband and her son to do in the shop in question. In her statement at the trial as well, she did not state the nature of her requirement for the shop. For the residential portion, of course, it was made clear that she was living in a rented house and she wanted to go to her own house which she had newly purchased. It is equally true that the defendant did not cross-examine her on that aspect of the matter. She examined Anand Prakash P.W. 2, who stated that Smt. Chand Devi has been living in the house of Birji Bai on rent and she is being asked to vacate that house Mahadeo, plaintiff's husband, has also been examined as P.W. 3. He supported the plaintiff's version that the suit house was required for the residence of the plaintiff and her family members. As regards the shop, it was stated that he and his son Prem Prakash will do their business. He did not state as to what type of business he proposed to carry in the said shop. He was not as well cross-examined on that aspect of the matter. Prem Prakash was also examined as P.W. 4. He deposed that he wanted to do some business on the shop as he was without any work. Moolchand P.W. 5 stated that Mahadeo did not do any independent work and he was working at his shop as an employee. In my opinion, the case Jodhraj 1970 RLW 170 is distinguishable on facts In that case, Suleman alleged in the plaint that he required the shop for his personal necessity. In the course of evidence, he tried to prove that the shop was required for his son Gafoor. Gafoor himself stated in his statement that he would do business either in cycles or in dyeing. Another witness Nanu, son-in-law of the plaintiff Suleman stated in cross-examination that Gafoor wanted to do business in 'kirana,' whereas Ghisu PW 3 stated that the shop in question was required by Suleman and he would do some business in the shop. In view of this evidence, the learned Judge did not believe the evidence and the non-disclosure of the nature of business in the plaint assumed importance. In the present case, as indicated above, there has been no inconsistency in the statements of the plaintiff's witnesses. The nature of business was not disclosed either in the plaint or in the statement at the trial. No attempt was made by the defendant to cross-examine the witnesses on that aspect of the matter.

7. In the case of Birdichand, the nature of business was not disclosed in the plaint and it was only stated that the plaintiff required the shop for his own use and occupation as he purchased it for starting his own business. In the statement as well, he did not go beyond that. The learned trial Judge was not satisfied as regards the bona fide requirement of the plaintiff. He dismissed the suit. In appeal, the finding was reversed and it was held that it was not necessary for the plaintiff to have disclosed the nature of business and it was enough if the plaintiff had said that he wanted to carry on business on the shop in question. The question in the second appeal, therefore, that came for consideration was whether the view taken by the first appellate court was right. It was in that context that Bhargava J. held that the learned first appellate court misdirected itself on the question that it is enough for the land lord to say that he required the premises for his own business without disclosing its nature and it is upon this premise that he has found the statement of the plaintiff sufficient to discharge the burden that the shop was required reasonably and bonafide for his personal use and occupation. He was of the opinion that this view was erroneous. This case has no doubt some bearing on the question involved in this case.

8. In the case of Ramchand decided by Shinghal J. the statements of the plaintiff's witnesses were misread and on that ground, the learned Judge held that the finding of fact arrived at by the appellate court stood vitiated and no reassessed the evidence. In addition to the ground, he also observed that the plaintiff did not disclose the nature of the need in the notice nor did he disclose it in the plaint. And what he disposed in his statement at the trial was misread by the appellate court. This case does not clearly beat out that the learned Judge meant to lay down that non-disclosure of the nature of business will be fatal to the plaintiff in establishing his requirement as reasonable and bonafide.

9. In view of the alternative argument submitted by Mr. Sogani, I need not express my opinion on this question as the decree can be maintained on that point. Learned Counsel for the appellant has not been able to satisfy me that the plaintiff's requirement for the residential portion was not reasonable and bonafide. As a matter of fact, he confided his argument that the plaintiff has not been able to establish her requirement as reasonable and bonafide so far as the shop is concerned inasmuch as the nature of business which was proposed to be done was not disclosed and the pleading in that respect was vague. The tenancy being one both for residential accommodation and for the shop, the ejectment of the tenant can only be for the entire rented out premises and not from a part of it. Bapna J. in the case of Ramdayal 1952 RLW 315 referred to above held that once the needs are bonafide in respect of a portion of the leased premises, the landlord has a right to come to court to ask for the eviction of the tenant from the entire premises. His Lordship observed:

The other contention that the defendant may be allowed to retain possession of such part of the first storey as had not been proved to be required by the plaintiff, is not correct. It is not necessary in such cases for the plaintiff to prove that every portion of the premises leased to the defendant was required for occupation by the plaintiff since the court cannot make out a new arrangement of tenancy between the parties for the property which may not immediately be required by the plaintiff. If the plaintiff succeeds in proving that any substantial portion of the leased premises are required by him for his own use, he would be entitled to a decree for ejectment of the lessee from the entire premises leased to him. If the leased premises, for instance, consisted of several rooms, out-houses, it would be absurd to think that the landlord stood in the necessity of proving his requirement in respect of every room or garage or out-house, or every inch of the court-yard or garden.

In the recent Act known as the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (No. XVII of 1950), the matter of eviction of tenants is provided under Section 13 and Clause (h) thereof requires the Court to see that the premises are required reasonable & bonafide by the landlord for the use or occupation of himself or his family. What is important, therefore, to see is that the needs of the landlord are bonafide, and once the needs are bonafide in respect of a portion of the leased premises, the landlord has a right to come to court to ask for eviction of the tenant from the entire leased premises. The contention of the defendant, that he may be allowed to retain possession of a small portion of the first storey for which no definite evidence has been led by the plaintiff as to his own requirement, has, therefore, no force.

I have no manner of doubt left in my mind that the plaintiff cannot be non-suited on the ground that she has not been able to establish her requirement for the shop as reasonable and bonafide for her failure to disclose the nature of business proposed to be carried in that shop. Here, a reference may also be made to Motilal and Anr. v. Nanak Chand and Ors. 1970 RCJ 99; a Supreme Court decision. Their Lordships while referring to their earlier decision in S. Sanval v. Gian Chand (1966)1 S.C.R. 536 observed:

The Court held in that case that the contract of tenancy was single and indivisible contract and in the absence of a statutory provision to that effect it is not open to the Court to divide it into the two contracts, one of letting for residential purposes, and the other for non-residential purposes, and to grant relief under Section 13(1)(e) of the Delhi and Ajmer Rent Control Act, 1952, in respect of the portion of the property used for residential purposes.

On the other hand, Mr. Bhargava referred to a decision of the Madhya Pradesh High Court in Jeevanlal v. Anant. 1972 RCJ 266. This decision, in fact, supports the view urged by Mr. Sogani. Dixit C.J., held in a case with similar facts:

The ejectment of a tenant can only be from the entire rented out premises and not from a part of it, unless a special statute regulating tenancies contains provisions permitting the ejectment of a tenant from a part only of the tenanted premises.

It was again observed:

When the tenancy is indivisible and cannot be split up and the tenant cannot be evicted from a portion of the rented out premises, it necessarily follows that when the landlord proves his requirement in respect of a part of the accommodation, then for the purposes of eviction his requirement for the entire premises must be held to be established. If a part which is needed cannot be had without the whole, then the whole thing must be given.

There is no provision in the Rajasthan Premises (Control of Rent and Eviction) Act, permitting the court to grant a partial decree for ejectment, and in the absence of such a statutory provision, I am unable to non-suit the plaintiff so far the shop in question is concerned. Since she has established her requirement as reasonable and bonafide with regard to the residential portion, she is entitled to evict the defendant from the entire premises.

10. Again, Mr. Bhargava has referred to a single Bench decision of the Gujarat High Court Kasturbhai v. Mohanlal 1968 GLR 729. Suffice it to say that the view taken in the Gujrat High Court is of no avail to the facts of the present case. Bombay Rents, Hotel and Loading House Rates Control Act (LV II of 1947) empowers the Court, if satisfied, that no hardship would be caused either to the tenant or to the landlord by passing a decree in respect of a part of the premises, the court shall pass a decree in respect of such part of it. Such a provision does not exist in the Rajasthan Act.

11. Learned Counsel for the appellant has submitted an application under Order 41 Rule 27 C.P.C. during the course of hearing of the appeal. By this application he has sought to file copies of the affidavit and an application of Mahadeo, husband of the plaintiff to show that he was not an employee of Moolchand, but a partner in the business. This application is not accompanied by an affidavit. I cannot assume the genuineness of the signatures of Mahadeo on the copies allegedly submitted by him. That apart, I cannot take notice of those events which need further investigation of facts. This application has to be rejected.

12. No other point for my consideration has been raised. In the result the appeal fails and it is hereby dismissed with costs.


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