VISHAMBHAR PRASAD LALWANI Vs. HASAMAL

JUDGEMENT

(1.) This appeal by the plaintiff landlord is against the dismissal of his suit for eviction of the respondent/defendant from the suit accommodation which he alleges to have purchased.

(2.) The suit accommodation is admittedly non-residential and the respondent is carrying on his business from that accommodation. It is also situate in the main market. The appellant is a doctor. He has secured Post-Graduate degrees in Opthalmology and Radiology. His father Mangatram Lalwani is also a doctor. They have a big house. In a portion of that house, the appellant's father Mangatram Lalwani has his clinic In the remaining part of the house, the family resides. When the appellant came back to his house after completing his studies, another X-ray plant, was purchased for him. That plant he has installed in another part of the residential house. It was his case that he wants the suit accommodation for starting X-ray clinic as also the eye hospital. This claim was denied as mala fide and the oblique motive for this action was said to be the desire to enhance the rent of the suit accommodation. It was pleaded that the appellant is only a joint owner of the suit house and the family house and the family house in his occupation is sufficient to meet the need, if any. The trial Court accepted the appellant's claim and decreed the suit. The lower appellate Court reversing the decree of the trial Court dismissed the suit on the finding that the house in occupation of the appellant was sufficient to meet the need and that the falsehood of bona fides of the claim are exposed by the fact that the appellant also included in the plaint an absolutely untenable ground of non-payment of arrears of rent. The lower appellate Court, however, held the appellant to be the landlord of the suit accommodation.

(3.) There can be no doubt that the appellant and his father Mangatram are in occupation of a house where they have at present their clinic. Although the appellant contended that the house belonged to his mother that part of the claim has not been established and that finding has become final so far as this second appeal is concerned. The question nevertheless is whether that house is non-residential. Shri S. Awasthy, learned counsel for the respondent, argued that the house is both non-residential while it and residential has been the contention of Shri S.B. Sinha, learned counsel for the appellant, that they house is essentially residential and in a small portion of it the appellant's father has his X-ray clinic and the appellant had to be accommodated pending ejectment of the respondent from the suit accommodation. In my opinion, Shri Sinha's contention must be upheld. It is true that the appellant's father has his X-ray clinic in a portion of that house. That by itself will not change the essential character of that house which is residential. The appellant has come out with a specific case in paragraph 4 of the plaint that the essential character of the house is residential. That part of the pleading has not been specifically denied. What, however, can be inferred from the various allegations in the written statement is that a part of it was used for X-ray clinic. In my opinion, for that reason alone the house does not cease to be residential. From the location of the house and the amenities provided, therein and also the use to which it is being put, it is clear that the house is, essentially residential. There is no reason to hold that it ceases to continue to be so on the appellant's father establishing an X-ray clinic in a part thereof. In my opinion, therefore, the suit house cannot be said to be an alternative accommodation available with the appellant for his non-residential need of opening his clinic. Therefore, apart from the question whether the appellant has no interest in that house (such was the contention raised on his behalf I am of the opinion that the house cannot serve as an alternative accommodation. If, therefore, the appellant is otherwise held entitled to the suit accommodation, a decree for ejectment must follow.