MAINABAI Vs. KESHAVLAL

JUDGEMENT

(1.) THIS is an appeal by the landlord from the judgment of the first Appellate Court setting aside the decree of the ejectment of the tenant passed by the trial Court and dismissing the suit. The ground on which ejectment was sought was the "personal need" of this non-residential accommodation under section 4 (h) of the Older Act, which was applicable to this case. The appellate Court, however, found that the son of the landlord, from whom the accommodation was wanted had already got alternative accommodation in the form of some uncertain and varying patch on a roadside footpath, on which he used to sit and sell his materials, having obtained a licence from the Municipality. The only question, therefore, is whether in terms of the old Act, for non-residential shopping accommodation the possession or the possibility of a licence to sit in the some corner of the roadside footpath within the municipal area, is alternative accommodation justifying the dismissal of the suit.

(2.) THE fact of the case are simple and are common ground The plaintiff is a lady of a trading caste with two sons in the trade The accommodation is a shop rented out to the defendant. The plaintiff's case was that she wanted this shop to enable her sons to run a business. The factual position is that one of the sons is running a shop in a rented building. Under the older Act the possession of an "owned" accommodation is not a criterion, which it is under the present new Act. The other son is doing retail business separately in cloth-selling pieces. He has no shop or some such accommodation. What he has done and has been doing for the last 6 or 7 years is to go out in the morning with a bundle of his cloth and sit at some place by the road in what is called the cloth market area. The road has got no pavement properly so called on either side, but a strip of land not usually used by vehicular traffic which is described as a footpath Peddlers sit on parts of it on licenses given by the municipal authorities, do their trade and go away at night. Possibly some of them put over their heads some canvass or some such protection propped on bamboo sticks but even these structures have to be removed every evening. It is suggested that the license fee, which was used to be taken by the day is now- a- days taken by the month.

(3.) WHATEVER might be the requirement of owned accommodation for the first son, the second son named Gopikrishna had, according to the trial court no alternative accommodation. Accordingly that Court decreed the suit. The appellate Court proceeding on the same facts held that there was alternate accommodation and in that accommodation Gopikisan, the son of the plaintiff had been doing "flourishing business" and was, therefore, not genuinely in need of the present accommodation tenanted by the defendant