LADU LAL Vs. KALU RAM

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment of the learned Civil Judge, Bhilwara dated September 26, 1983 by which he has allowed the plaintiff-landlord's appeal and has reversed the judgment of the learned Munsif, Bhilwara dated November 5, 1979, dismissing the plaintiff-respondent's suit for recovery of arrears of rent and ejectment. The facts of the case may be summarised thus.

(2.) ON December 13, 1973, the plaintiff-respondent filed a suit for the recovery of arrears of rent and ejectment on the grounds of default in payment of rent, reasonable and bonafide necessity and sub-letting with the allegations, in short, that the suit shop situated in Factory Area Bhilwara was let out to the defendant on monthly rent of Rs. 65/-, it was subsequently enhanced to Rs. 90/-, he has defaulted in payment of rent of Rs. 720/- and it is reasonably and bonafide required for his son Kanhaiyalal. By amendment of the plaint averments that the front portion of the demised shop has been sub-let to watch repairer Khubiram Sindhi have been added. The defendant admits in his written statement that he is in occupation and possession of the suit shop as a tenant of the plaintiff and he duly received the notice of ejectment. The remaining allegations of the plaint have been traversed. It has further been averred that the plaintiff's son Kanhaiyalal brings milk from his village Kodia to the town of Bhilwara and sells there besides doing agriculture in the village. After framing necessary issues and recording the evidence of the parties, the learned munsif held that the monthly rent was not enhanced from Rs. 65/- to Rs. 90/-, the defendant has not committed default in payment of rent, the suit shop has not been sub-let and it is not required for Kanhaiyalal reasonably and bonafide and accordingly dismissed the suit by his judgment dated November 5, 1979. The plaintiff preferred appeal and it was allowed by the learned Civil Judge, Bhilwara by his Judgment dated September 26, 1983 reversing all the findings relating to the said grounds of ejectment.

(3.) IT has been contended by the learned counsel for the defendant-appellant that the necessary ingredients of clauses (e) and (h) of sub-section (1) of Section 13 and sub-section (2) of Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, are not spelt out from the averments made in the plaint and as such the plaint deserves to be rejected under Order 7 Rule 11, CPC and in the alternative, he also contended that no evidence can be looked into on the issue of reasonable and bonafide necessity, comparative hardship and sub-letting for want of necessary pleadings. He relied upon Onkarnath v. Vaid Vyas, 1980(1) RCR 304; Hasmat Rai v. Raghunath Prasad, 1982(1) RCJ 499; Dr. Mrs. N.D. Khanna v. M/s. HIndustan Industrial Corporation, AIR 1981 Delhi 305; Abdul Hamid v. Noor Mohd., 1976 RCR 301; Banke Ram v. Smt. Sarasti Devi, 1977(1) RCR 595; Edwin Brarve v. Hari Chand, 1982(21) DLT 209; R.K. Trikha v. Kishan Chand, 1983(23) DLT 268; Jodh Ram v. Suleman, 1970 RLW 170; Birdhi Chand v. Ram Prashad, 1970 RCR 442; Smt. Radhey Piari v. S. Kalyan Singh, AIR 1959 Punjab 508; Amir Ahmed v. Yusuf, 1985 RLR 718 and M/s. Delhi Stationers and Printers v. Rajendra Kumar, AIR 1970 SC 1209. He also contended that nature of business which the plaintiff's son Kanhaiylal wants to start in the suit shop has not been disclosed and on this ground alone the appeal deserves to be allowed and suit deserves to be dismissed. In the alternative, he contended that the matter be referred to the larger Bench as in Jodhraj v. Suleman (supra) and Birdhi Chand v. Ram Prasad (supra) it has been held that it is necessary for the plaintiff to disclose the nature of business which is to be started in the suit shop but it has been held in Dr. Salig Ram v. Sagar Chand, AIR 1983 Raj. 176, that it is not so. He also contended that the plaintiff's son has stopped selling milk, he is now Sarpanch of the village, he is doing the business of motor parts and repairing electric motors and he is also operating mines. He lastly contended that the findings of the trial Court regarding partial eviction are against record and perverse.