ASHOK KUMAR DUGGAL Vs. GHUMANDAS MEHANI

JUDGEMENT

(1.) LEARNED counsel for the appellant argued that the alternative accommodation, constructed by the appellant is not suitable for non -residential purpose. Both the Courts below have concurrently held that the alternative accommodation, constructed by the appellant, was suitable for non -residential purpose. It has been found that the four rooms constructed by the appellant are fitted with shutters. None of them has windows. There is only one ventilator. It has also been found that the appellant has not produced the map, whereby the new construction was sanctioned and has asserted that he has not got any sanction from the Corporation.

(2.) IN cross -examination, it was suggested to the appellant that he did not produce the map whereby the sanction was made in order to hide the facts that these four rooms were constructed for making a shop. The Court below has drawn an adverse inference against the appellant. Further more, the Court below has relied on the evidence of one of the witnesses Pankaj Doshi that the newly constructed shop had shutters and they look like shops. 3. The appellant has said in his evidence in so many words that the alternative accommodation is not suitable for non -residential purpose. There is no merit in the argument of learned counsel for the appellant that the Courts below were not entitled to hold that the alternative accommodation is suitable. Learned counsel for the appellant tried to argue that since the appellant was not using the aforesaid accommodation for the non -residential purpose, it should be inferred that these newly constructed, rooms were made for residential purpose.

(3.) LEARNED counsel for the appellant brought to my notice a decision in the case of Sunderlal v. Badri Prasad; in Second Appeal No. 389/1977 (Gwalior) decided on 7.8.1979, reported in 1980 MPRCJ Note 5. The facts of this case are distinguishable. In that case, the landlord was occupying residential premises with the members of his family. Since, he had no vacant accommodation, he was preparing Rewadi in his house and selling the Rewadi on Thela. The landlord pleaded that he required the suit shop, which was situate in main market and was admittedly a non -residential accommodation. It was contended on behalf of the tenant that the landlord could carryon his business from his residential accommodation because he was using the part of residential accommodation for preparing Rewadi and Gajak. It appeared that in the lower portion as well as in the upper portion, which were part of his house, he prepared Rewadi after putting tin shed in the lower portion. The Court, after examining the evidence on record, came to conclusion that the portion in occupation of the landlord was primarily a residential although it was being used for business purpose also. Only the portion which was used for preparing Rewadi could be said to be non -residential 0ut that was part of the residential accommodation. The Court, therefore, came to the conclusion that since the house in accommodation of the landlord/plaintiff was primarily residential, it was not necessary to him to plead and prove and say that he had an accommodation which could be used for non -residential purpose. This is not a case where the landlord had constructed alternative accommodation for non -residential purpose.