HARI KRISHAN Vs. VIKAS MALHOTRA

JUDGEMENT

(1.) Parties have been litigating for last nearly three decades. The suit filed in the year 1982 culminated in judgment & decree on 23-04-2002. The Civil first appeal against the judgment & decree stand dismissed on 10-07-2009. Hence the second appeal.

(2.) Corner shop alongside main road in Parade Ground opposite Government library belonged to Vinod Kumar (whose legal heirs are Respondents No. 1 to 3). Said Vinod Kumar had leased the said shop for a period of 11 months on a monthly rent of Rs. 75/in favour of Shiv Shankar and Raj/Dulari with effect from 16.6.1967. Later on rent was enhanced to Rs. 95/. The rent deed was executed on 20.6.1967. It is Shiv Shankar who started the business of electric hardware in the said shop under the name and style of ''Shiv Electrical and Hardware store''. He did not continue with the said business so engaged himself in running a Dhaba in Transport Yard, so stopped using the leased premises, whereas Raj Dulari never used the said premises.

(3.) Vinod Kumar filed a suit for ejectment and recovery of possession on the ground that the shop had remained closed for 14 consecutive months and thus no business was being conducted therein. Failure to use the shop for said period disentitled the tenants from any protection against the eviction in terms of Section 11 of the J&K Houses and Shops Rent Control Act, 1966. Secondly said Vinod Kumar claimed personal necessity and bonafide requirement of the shop to be used as a garage as his old father, namely, Prem Nath, an angina patient, owned a car bearing No. JKA-5075, their house was accessible by a narrow approach through a lane, so there was no parking space which forced them to use the space in the house of Lala Chet Ram Chopra in Mohalla Rehari. Said Vinod Kumar also purchased another vehicle prior to his death. Finally after the death of the male members, the family consisted of ailing mother of Vinod Kumar, his widow, a daughter and a minor son. With the death of two male members, the personal necessity became imperative and pressing as they were unable to park their two cars for want of space.