BANSIDHAR Vs. NEMICHAND

JUDGEMENT

(1.) THIS is a plaintiff's second appeal whose suit for ejectment was dismissed by the lower appellate Court.

(2.) THE facts of the case lie within a narrow compass: The defendant is occupying a shop belonging to the plaintiff as his tenant on a monthly rent of Rs. 2 -8 -0. The plaintiff served a notice on the defendant terminating his tenancy and thereafter sued him for ejectment and arrears of rent. The plaintiff alleged in the plaint that he genuinely required the shop for his own business and that he had no other shop in the city of Lashkar suit able for that purpose. The defendant denied that the plaintiff genuinely required the shop for his own business. According to him the. plaintiff was doing his business in jewellery at the shop of one Chhotelal Chimanlal.

(3.) I have heard the learned counsel for the appellant at some length. His contention is that an alternative accommodation within the meaning of S. 4 clause (h) of the Accommodation Control Act must be accommodation of the same kind as is required by the plaintiff i.e. the accommodation must be non -residential accommodation in the present case. The learned counsel contended that the lower appellate court erred in holding that the plaintiff's residential house could be treated as an alternative accommodation within the meaning of S.4 Clause (h) of the Act prima facie the contention of tine learned counsel appears to be well -founded. But what has really happened is that the learned appellate Judge has mixed up the question as to the genuineness of the requirement of the plaintiff with that of the availability of such an alternative accommodation as would disentitle him to relief under S. 4 (h) of the Act. The plaintiff did not state in his plaint that he was carrying on his business had so much expanded as would necessitate a shop. The defendant on the other hand pleaded vaguely that the plaintiff carried on his business at some one else's shop. The cross -examination of the plaintiff was however, allowed to proceed on lines of which the pleadings contained no indication. The result has been that the judgment appealed from is based on grounds which were not specifically raised in the pleadings.