DHANNA LAL Vs. KAILASH CHAND @ RAKESH SHARMA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The plaintiff-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 28.4.2003 passed by the Additional District Judge No. 5, Jaipur City, Jaipur in Civil Regular Appeal No. 51/2002 whereby the learned appellate Court, while allowing the appeal filed by the defendant- respondent, set aside and reversed the judgment and decree dated 7.9.2000 passed by the trial Court i.e. Civil Judge (Junior Division) East, Jaipur City, Jaipur in Civil Suit No. 154/1994 whereby the learned trial Court decreed the suit for eviction filed by the plaintiffappellant.

(3.) Brief relevant facts for the disposal of this appeal are that the appellant- landlord filed a suit for eviction on 24.3.1994 on the ground of bona fide and reasonable necessity with the averments that the suit premises is required by him so that he can start jewellery business for which he has sufficient experience. It was further averred that if decree of eviction is not passed, more hardship will be faced by him in comparison to the respondent tenant as the respondent is presently in the employment of a Bank and otherwise also he can take another premises on rent whereas in absence of the suit premises the appellant will not be able to do his business. It was prayed that decree for eviction may be passed against the respondent. In the amended written statement filed on 13.5.1999, it was averred that the appellant has no bonafide and reasonable necessity for the suit premises by the reason that he is presently in a job of accountancy and he has no experience and training to do the business of jewellery. It was also. submitted that a room measuring 25 ft. x 12 ft. is in the vacant occupation of the appellant in the same building which is suitable and sufficient for the necessity shown by the appellant and there are several other rooms available with the appellant which can easily be used for the said business but the appellant is not using them and this is a clear indication of the fact that the need shown by the appellant is not bona fide and reasonable. It was further submitted that the appellant after the institution of the suit, in the year 1995 has let out a room to one Shri Banwari and this fact also indicates that the need shown by the appellant for the suit premises is not bonafide and reasonable. This averment of the plaint was denied that if the decree was not passed in favour of the appellant. more hardship will be caused to him in comparison to the respondent. In the rejoinder filed by the appellant it was denied that in the year 1995 a room was let out to one Shri Banwari and some other vacant rooms are available to the appellant for his use and occupation. It was specifically averred that Shri Banwat is tenant in a room.situated at first floor of the building since the year 1983 whereas one Shri Jankl Lal is tenant since the year 1982 and one Shri Shambhu Bangall is tenant since the year 1980. It was also averred that some other rooms of the appellant as referred by the respondent are in occupation and use of other:, tenants as mentioned in the re- joinder. It was also stated that the appellant presently has only two rooms, one kitchen and one 'Baramada' in his occupation. which are being used for residence. On the basis of the pleadings of the parties, necessary issues were framed by the trial Court. Both the parties produced oral as well as documentary evidence and the learned trial Court after hearing both the parties vide judgment and decree dated 7.9.2000 decreed the suit filed by the appellant- landlord. Issue No. 1 was decided in favour of the appellant and it was found by the Court that the appellant has sufficient experience of jewellery business and he bona fidely and reasonably requires the suit premises for the same and he has no sufficient and suitable alternative accommodation for his requirement. Issue No. 3 regarding. comparative hardship was also decided in favour of the appellant by holding that the respondent presently is in the service of a Bank and he himself is not using the suit premises and no other member of his family is in use and occupation of the same whereas the appellant requires the suit premises for his own business. So far as Issue No. 4 regarding partial eviction is concerned, it was stated by the learned trial Court that both the parties have agreed that in case the decree for partial eviction is passed requirement of none of the parties will be satisfied. Feeling aggrieved, the respondent filed appeal under Section 96 C.P.C. and the same was allowed by the first appellate Court vide judgment and decree dated 28.4.2003. It was held by the appellate Court that the appellant has no past experience to do business of jewellery and intact he is doing a job of accountancy, and apart from that prima facie it does not seem natural that the appellant gained experience to do the business of jewellery to start that business at the age of 65 years. it was also found by the appellate Court that if for the sake of arguments; it is admitted that the appellant after leaving his job of accountancy, has gained experience of doing business of jewellery, even then he has failed to explain why he did not commence that business in some other room available to him. It was also found by the appellate Court that there are many other rooms available to the appellant but he has failed to use the same for his business. It was also held by the Court that subsequent to the filing of the suit the appellant has let out a room to a tenant and this is an indication of the fact that the need shown by the appellant is not bonafide and reasonable. It was also held that on the admission made by the appellant it is clear that at least one vacant room is available with the appellant which is presently being used only for storing water whereas this room could be used by the appellant for his need. Therefore, the finding of the trial Court under Issue No. I was reversed mainly on the ground that sufficient and suitable alternative accommodation is available to the appellant. it is pertinent to note that Issue Nos. 3 and 4 were not considered and decided on merit by the appellate Court only by the reason that Issue No. 1 has been decided against the appellant. As a consequence of the finding arrive at under Issue No. 1, the appeal was allowed and the suit filed by the appellant was dismissed. Feeling aggrieved, the plaintiffappellant is before this Court by way of this Civil Second Appeal.