S. BUDH SINGH Vs. DILBAGH RAI

JUDGEMENT

(1.) THIS civil second appeal arises out of a ejectment suit. The trial court as also the first appellate court has found that the plaintiff-respondent herein has proved his reasonable requirement of the suit shop for his personal use and have arrived at a concurrent finding about the reasonable requirement of the plaintiff-respondent. The learned counsel for the appellant has frankly conceded before me that Issues No. 1, 2 and 3 framed in the suit have been concurrently decided by the courts below against him, therefore, he would not assail the findings of the courts below on these issues. However, Issue No. 4, which reads as under :

(2.) ON issue No. 4 as reproduced above, the trial court has held that on the basis of a document Ext. D/1 the plaintiff was not prevented from instituting the suit as there was no stipulation in the said document that the plaintiff would be prevented from filing the suit till the loan advanced by the defendant to the plaintiff was liquidated. It is held that the plaintiff's cause of action is based on the rent-note and the subsequent agreement as regards loan and conditions of its repayment would not stand in the way of the plaintiff to seek eviction of the defendant. Mr. Bhagotra appearing for the appellant has drawn my attention to the Ext. D/1 dated 19.8.1979. By virtue of this agreement, the plaintiff purports to have borrowed Rs. 2500/- from the defendant with a stipulation that interest accruing on the said amount of Rs. 2500/- shall be adjusted towards the rent of the shop which was payable to the plaintiff. Till the liquidation of this loan the plaintiff had also undertaken not to demand any rent from the defendant for the shop in question. Relying on these conditions Mr. Bhagotra has submitted that the suit of the plaintiff was premature because he had received rent in advance therefore, his tenancy after receipt of the rent could not have been terminated or determined by the plaintiff. The first appellate court has not at all adverted to this question. The appellant, therefore, has contended that there is no concurrent finding on Issue No. 4 by the courts below, therefore decision on this issue given by the trial court should be reconsidered and the case remitted back to it for fresh decision according to law.

(3.) THE plaintiff's suit has been based on personal requirement which is termed in the plaint as bonafide and reasonable by him. His suit is not based on default in payment of rent by the defendant. Itt has been the defence of the defendant that in view of the loan advanced by him to the plaintiff, the suit of the plaintiff is premature. He is basing his claim on the stipulation contained in the document Ext. D/1 that interest due on the amount advanced was to be adjusted towards the payment of rent of the shop and till the loan was liquidated cause of action to sue would not accrue to the plaintiff. This argument would have been accepted had the suit been based only on the ground of default in the payment of rent, which by itself is a ground for eviction under certain circumstances mentioned in the J and K Houses and Shop Rent Control Act, hereinafter to as 'the Act.' To the bad luck of the defendant, the suit is not based on the default in payment of rent but is based only on reasonable requirement of the landlord. When the suit is based only on reasonable requirement of the landlord, determination or termination of the tenancy prior to the institution of the suit is not required under the provisions of the Act. Tenancy of a statutory tenant governed by the Act on the ground of bonafide requirement of the landlord gets determined with the passing of the decree against the tenant. Till the stage of decree he continues to be a tenant. Notice under section 106 of the Transfer of Property Act for determination of his tenancy is unnecessary and mere surplusage because of notice only the landlord cannot get eviction of his tenant. Even after such determination tenant continues to be a tenant thereafter. That being so, the determination of tenancy in the present case was not at all required under law. I am fortified in my view by an authority of the Supreme Court viz. V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1945 : 1979(2) RCR 352.