TIKAMCHAND Vs. PRAKASH CHANDRA

JUDGEMENT

(1.) THIS second Appeal by defendant / tenant who was unsuccessful in the two Courts below was by order dated 8 -12 -89 admitted for final hearing on the substantial questions of law set out below:

(2.) THE plaintiff filed civil suit on 19 -8 -81 in the Court of Civil Judge Class -II, Sanawad against the defendant for eviction from non -residential accommodation described in para 2 and para 12 -A - relevant clause of the plaint. The plaintiff's case was that in the year1974 he commenced running Kirana shop in portion of the house owned earlier by one Ramibai widow of Ram Lal. In the eastern side of this shop the defendant was running a shop being tenant of the earlier owner Rami Bai. Plaintiff by registered sale deed dated 11 -7 -80 purchased the whole building described in para 1 of the plaint from Mst. Rami Bai and thus became owner of the whole building and landlord of the defendant tenant in respect of the portion and Kotha behind as described in para 2 of the plaint where the defendant was running a shop. The volume of business of the plaintiff since he opened the shop in the year 1974 had increased manifold and the small room measuring 10' x 9' described in para 5 -A of the plaint was too small and inadequate for the shop and godown of the plaintiff inconvenient to the customers. The plaintiff, therefore, wanted to break the partition wall between the shop of the defendant and his own shop and make the shop larger. It was also submitted that in plaintiff's possession there is no sufficient space for storing goods of the shop and for the purpose the plaintiff had taken a room on rent in Agrawal Bhavan and another room in Digamber Khandelwal Dharm Shale. The plaintiff proposed to utilise the room behind the defendant's shop for storing his goods. The plaintiff's case further was that he was residing as a tenant in Hukumchand's house on rent and that he proposes to construct one storey over the house purchased by him for his residence. This construction could be made only after removing parapet over the building. The plaintiff by amendment made on 9 -3 -83 and 26 -6 -85 also pleaded that his wife had during pendency of the suit purchased residential house which did not belong to the plaintiff and was not suitable for non -residential purpose. Further, that at Sana wad except for the house as described in para 1 of the plaint the plaintiff had no other accommodation of his own at Sanawad for his growing business.

(3.) AT the hearing of the appeal, Shri K.L. Sethi learned Advocate submitted that the plaintiff had suppressed the fact of there being Kotha behind his shop. Not a word has been stated about its un -suitability for plaintiff's non -residential purpose. This was fatal to the claim for eviction on ground under S. 12 (1) (1) of the Act. For the argument he relied on Hasmat Rai v. Raghunath Prasad; (1981 JLJ 716) (SC) and number of decisions of this Court which would be referred to later.