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Karim Ali Vs. Mohan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Appeal No. 88 of 1975
Judge
Reported in1977WLN(UC)8
AppellantKarim Ali
RespondentMohan Lal
DispositionAppeal dismissed
Excerpt:
.....them' in a small 'kofari' which is under the staircase. in the opinion of the learned additional civil judge the plaintiff has succeeded in establishing that his requirements are bona fide, and that the question of comparative hardship is also in his favour, the defendant-appellant did not enter into the witness-box, and did not allow him to be cross-examined by the other side on the question whether he is in possession of an alternative accommodation consisting of a shop and four rooms and an additional space for running a 'bhatti'. bhagwan das dw/1. secretary of the bakery association, who has been examined on behalf of the defendant has stated that the defendant has an alternative accommodation just in front of the shop in question where he is running a bakery, and that the..........a second appeal under section 100, cpc against the judgment and decree of the learned additional civil judge, udaipur dated january 30, 1975 reversing the, judgment and decree of the learned munsiff, udaipur dated january 18, 1974.2. the facts of the case, in brief, are that the plaintiff mohan lal filed a suit for ejectment against karim ali in the court of the learned munsiff, udaipur on the ground of requirement of the premises for his personal use and occupation. the learned trial court dismissed the suit on january 18, 1974. the plaintiff feeling aggrieved filed an appeal which was allowed by the learned additional civil judge, udaipur on january 30, 1975. the plaintiff's suit for ejectment was decreed. it is against this judgment and decree that the defendant appellant has filed.....
Judgment:

P.D. Kudal, J.

1. This is a second appeal under Section 100, CPC against the judgment and decree of the learned Additional Civil Judge, Udaipur dated January 30, 1975 reversing the, judgment and decree of the learned Munsiff, Udaipur dated January 18, 1974.

2. The facts of the case, in brief, are that the plaintiff Mohan Lal filed a suit for ejectment against Karim Ali in the Court of the learned Munsiff, Udaipur on the ground of requirement of the premises for his personal use and occupation. The learned trial Court dismissed the suit on January 18, 1974. The plaintiff feeling aggrieved filed an appeal which was allowed by the learned Additional Civil Judge, Udaipur on January 30, 1975. The plaintiff's suit for ejectment was decreed. It is against this judgment and decree that the defendant appellant has filed the present second appeal before this Court.

3. During the pendency of this appeal, the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 was amended by the Rajasthan. Premises (Control of Rent & Eviction)(Amendment) Act, 1976 on March 3, 1976, and an additional issue was framed by this Court and was emitted to the learned lover Court for recording a finding on comparative hardship. On remand, the learned Additional Civil Judge recorded the evidence of the parties. On behalf of the appellant-plaintiff Mohan Lal PW/1, Sukhlal PW/2, Kishan Lal PW/3 and Jeewan Prakash PW/4 were examined. On behalf of the defendant-tenant Bhagwandas DW/1 Murjamal DW/2 were examined, with regard to the question of comparative hardship as contained in the additional issue which was framed by this Court and remitted to the learned lower appellate Court vide proceedings dated March 3, 1976 as stated above. On July 22, 1976, the learned Additional Civil Judge recorded the finding in favour of the plaintiff' respondent holding that greater hardship would be caused to the plaintiff if the suit for ejectment against the defendant-appellant is not decreed. The defendant-appellant has filed objections on December 4, 1976 against the finding of the learned Additional Civil Judge. The plaintiff-respondent has not filed any objection against that finding,

4. It has been contended on behalf of the defendant-appellant that the plaintiff-respondent has failed to establish bonafide necessity with regard to the suit premises. It was also contended that if the question of bonafide necessity is decided against the plaintiff respondent, then the question of comparative hardship as envisaged in Section 14(2) of the Rajasthan Premises (Control of Rent & Eviction) Act. 1950 (hereinafter to be referred to as the Act), cannot be looked into. It was also contended that the learned trial Court had dismissed the plaintiff's suit and that the learned Additional Civil Judge erred in law in reversing that finding of fact. It was also contended that the plaintiff's son is aged only 15 years who is said to be eager to start the business of running restaurant. It was also contended that the adjoining shop had fallen vacant, and that the plaintiff-respondent, leased it out to a washerman, and if he really wanted the shop in question for running the business of restaurant then there was no need for giving the adjoining shop on rent to the washerman. It was, therefore, contended that the appeal may be allowed, and the judgment and the decree of the learned appellate Court may be set aside and that the judgment and decree recorded by the learned trial Court be confirmed.

5. On behalf of the plaintiff-respondent, it has been contended that the learned lower appellate Court after taking into consideration the evidence on record has recorded the finding that the plaintiff-respondent is in need of the suit premises bonafide and for providing employment to his son by running a restaurant in the shop in question. It was further contended that when the case is remitted to the learned lower appellate Court on an additional issue framed by this Court on the question of comparative hardship, the plaintiff-respondent examined four witnesses, while the defendant-appellant examined two witnesses, and the learned Additional Civil Judge again came to the finding that the comparative hardship is also in favour of the plaintiff-respondent. It was further contended that the defendant-appellant has another accommodation available with him in which he has one shop and four rooms and some additional accommodation for running a Bhatti, and that there is absolute no justification for not passing a decree of ejectment against the defendant-appellant.

6. The respective contentions of the learned Counsel for the parties have been considered and the record of the case carefully perused. The learned trial Court was of the opinion that the plaintiff has failed to establish bonafide requirement for the shop in question as the plaintiff's son is hardly 15 years of age, and that be is not in a position to run the proposed restaurant as stated by the plaintiff. The learned trial Court also recorded a finding that as the plaintiff has no financial resources available with him, it would not be possible for him to run a restaurant, and as such, the plea of eviction of the tenant from the shop in question on the ground of running a restaurant is nothing but a device for seeking ejectment of the tenant. The learned lower appellate Court, however, came the conclusion that the plaintiff has succeeded. In establishing the bonafide requirement for the shop in question, and that the question whether finances were available with the plaintiff for running a restaurant does not deserve any attention. An additional issue having been framed by this Court and remitted to the learned Additional Civil Judge for recording a finding regarding comparative hardship, the learned Additional Civil Judge has again recorded a finding that scales are in favour of the plaintiff-respondent. On this question also, it has been held that the defendant-appellant has an alternative accommodation also in his possession, in which he has one shop and four rooms with an additional space for running a Bhatti-It has also been held by the learned Additional Civil Judge that the plaintiff has no other accommodation available and that the shop in question is the only available accommodation where his son can run a restaurant. It has also been stated that the plaintiff's wife prepares 'papad' and sells them in a small 'Kotari' which is under the staircase. In the opinion of the learned Additional Civil Judge the plaintiff has succeeded in establishing that his requirements are bonafide, and that the question of comparative hardship is also in. his favour. The defendant-appellant did not enter into the witness-box, and did not allow him to be cross-examined by the other side on the question whether he is in possession of an alternative accommodation consisting a shop and four rooms and an additional space for running a 'bhatti'. Bhagwan Das; DW/1, Secretary of the Bakery Association, who has been examined on behalf of the defendant has stated that the defendant has in alternative accommodation just in front of the shop in question where he is running a bakery, and that the alternative accommodation consists of a shop and four rooms.

7. Having given my most anxious consideration to the respective contentions of the learned Counsel for the parties, I find myself unable to interfere in the judgment & the decree of the learned lower appellate court. The appeal filed by the appellant has no force and is hereby dismissed with the costs.

8. The learned Counsel for the defendant-appellant prays for leave to appeal to a Division Bench. As the appeal has been decided on appreciation) of evidence on record and no substantial question of law is involved the prayer for leave to appeal is hereby rejected.

9. The defendant-appellant is, however, granted three months time to vacate the shop in question.


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