KAMALKISHORE Vs. NARAYANDAS

JUDGEMENT

(1.) THIS is a second appeal by the landlord in a suit for ejectment on the ground of personal necessity from the dissident appellate judgment of the District Court setting aside the decree in his favour passed by the trial Court. The appellate Court has not questioned the finding of the personal necessity but has held that the plaintiff had not acted bona fide in this regard because sometime before the filing of the suit he had accommodation available to him, namely, three rooms on the second floor of the house but he let it out to a tenant and brought this suit for five rooms on the first floor of the same building. The appellate Court regarding this mala fide set aside the decree in favour of the plaintiff-landlord even though he was in need of more accommodation than he was occupying.

(2.) THE two questions therefore an, whether are inference of mala fide from a set of factual findings is a mixed question of fact and law or is one of pure fact; in the former case it will be justiciable in second appeal and in the latter not. Secondly, whether it can be held that the landlord has acced mala fide by showing a predilection to accommodation in the first floor in preference to accommodation in the second floor, and further, a predilection for one unit consisting of five rooms instead of having two rooms on the ground floor and three on the second floor.

(3.) THE facts of the case necessary far our purpose can be stated thus : the plaintiff-appellant owns a building in which there are two floors besides the ground. Each of the floors is divided into a number of small rooms and he has been letting these to a large number of tenants in all anything like 10 or 12. The defendant is a tenant on the first floor consisting of 5 rooms. Before the suit the plaintiff had been living in two rooms downstairs and had let all the rest of the accommodation. This seems to have been going on for quite a number of years. But lately the plaintiff found that for one thing his children have grown up and for another he has prospered in his business and has attained some status and wants to live with some more comfort than he had been living in the past. In particular, besides the kitchen and the living room he wanted a room for storing his goods, another for meeting guests and callers and a third for the children who are going to school. Looked at that way the accommodation of five rooms, that is to say, three in addition to the present two, looks reasonable and genuine. Incidentally, a room has been described in the evidence as anything between 10 ft. square and 12 ft. square and by no means a large area. Both the Courts have agreed that the plaintiff was in need of more accommodation than the two rooms on the ground floor he had. To be sure, for quite a number of years the plaintiff had been, as it were, punishing himself by squeezing into the narrow accommodation; but now he feels he can afford to live in better accommodation. That is also reasonable. The trial Court having granted the decree for ejectment (there being no controversy about rent-papers) the appellate Court noticed the fact that sometime ago three rooms were vacant on the second floor but the landlord did not occupy them though in area this accommodation was about the same as the deficiency which the landlord had been experiencing. He let that accommodation on rent and shortly after brought this suit for the accommodation on the first floor rented to the present defendant-respondent at Rs. 88 p. m. the rent itself having been fixed 16 or 17 years ago. It is also a fact that when the accommodation on the second floor was let on rent it was higher than what the previous occupant had been paying. This has been suggested as an index of bad faith. But the new tenant has not complained and it is a notorious fact that rents had been going up with increasing inflation.