S GURBACHAN SINGH Vs. S GURCHARAN SINGH

JUDGEMENT

(1.) THIS is an appeal against a judgment and decree dated October 21 1970, of the learned Sub -Judge, (Chief Judicial Magistrate) Jammu, reversing the judgment and decree dated March 23, 1970 of the Sub -Registrar, Munsiff, Jammu.

(2.) IT appears that the plaintiff -appellant claiming himself to be a legate of Ganga Ram brought a suit for the eviction of the defendant -respondent from a shop situate in Lakhdatta Bazar. Jammu, on the ground that he wanted to rebuild the same. The suit was resisted by the respondent inter alia on the ground that the shop was in a good condition and that there could be no question of its being required for the purpose of being rebuilt. The trial Court struck a number of issues and after recording and considering the evidence adduced by the parties, it decreed the suit on June 7, 1968. On appeal the District Judge, Jammu, being of the opinion that Issue No. 3 was not specific and required modification remanded the case to the trial Court on August 31, 1968 with the direction that it should frame a fresh issue to the effect as to whether the plaintiff reasonably required the suit shop for the purpose of rebuilding it having regard to the comparative public benefit or dis ­advantage. After remand the parties examined some more witnesses where -after the trial Court again decreed the suit in favour of the plaintiff appellant on August 28, 1969. Against this judgment and decree of the trial Court the respondent preferred an appeal before the District Judge Jammu, who by his judgment dated January 21, 1970, accepted the same, set aside the judgment and decree of the trial Court and directed that a fresh decision with regard to both parts of issue No. 3 namely whether the plaintiff reasonably required the suit shop for re -building and whether the reconstruction would be in public interest be given. The trial Court accordingly reconsidered the matter and again decreed the suit in favour of the plaintiff by its judgment dated March 25, 1970. Against this judgment and decree the defendant preferred an appeal to the Sub -Judge (Chief Judicial Magistrate) Jammu, who had by then been invested with appellate powers under section 34 of the Civil Courts Act, 1977 (1920 A. D.). The learned Sub -Judge being of opinion that the suit shop was in good condition, that it could withstand the weight of the second storey after minor repairs, that if the plaintiff raised two more storeys on the shop the advantage will be to him alone and not to the public and the defendant would be put to a great hardship held that the plaintiff did not reason ­ably require the shop for being rebuilt. Accordingly he set aside the judgment and decree of the trial Court by his judgment dated October 21, 1970. It is against this judgment and decree that the plaintiff has come up in appeal to this Court.

(3.) APPEARING on behalf of the appellant Mr. Amar Chand has urged that the shop in question is about fifty years old, that taking into consideration the condition of the shop it requires to be rebuilt, that the plaintiff has got the plans sanctioned by the Municipality, that he wants not only to rebuild the shop but also wants to put up two more storeys on it with a view to extending the accommodation and that he has got the means to do it. He has further contended that according to the Explanation to section ll(h) of the Jammu and Kashmir Houses and Shops Rent Control Act hereinafter referred to as "The Act" the Court has only to determine the reasonableness of the require ­ment having regard to the comparative public benefit or dis ­advantage by extending or diminishing the accommodation, that it is not required to have regard to the comparative advantage or dis -advantage of the landlord and the tenant which is a relevant consideration only in a case where the shop is claimed to be required for personal occupation and that the learned Sub -Judge has erred in adverting to this aspect of the matter.