AHMED FAROOQ Vs. HARISH CHANDRA

JUDGEMENT

(1.) This second appeal has been filed by the plaintiff-landlordAhmed Farooq s/o Hazi Mohd. & his four sons Abdulla Farooq, Abdulla Haroon, legal representatives of predeceased son Abdulla Salam and Abdul Tahir against the respondent defendant-tenant Harish Chandra s/o Umrao Chand and others, being aggrieved by the judgment and decree dated 3/12/1996 passed by the learned Addl. District Judge No.1, Jodhpur in Regular Civil Appeal No. 19/87 reversing the eviction decree passed by the learned trial court in eviction suit no. 4/85 (Ahmed Farooq & Ors. vs. Harish Chandra & ors.) filed by the plaintiff landlords in the year 1985 in respect of suit shop no. 11 situated in Abdulla Building 'A', Station Road, Jodhpur, which was intially let out to defendant tenant at monthly rent of Rs.40/- per month and defendant tenant continued to occupy the said shop at the same rent of Rs.40/- though the trial court fixed the mesne profits at Rs.100/- per month while decreeing the suit no. 4/85 on 28/3/1987. The plaintiff landlords filed the eviction suit inter alia on the ground that default in payment of rent and bonafide necessity for setting up the crockery business for the son of plaintiff Ahmed Farooq, namely; Abdulla Farooq, who was 25 years of age at the time of filing suit in the year 1985 and is now about 52 years of age. Usual amendments in the pleadings, appeal and revision against interim orders prolonged the trial and in the course of first appeal filed by the tenant, namely Regular Civil Appeal No. 19/87 (Harish Chandra & anr. vs. Ahmed Farooq & Ors.), which came to be allowed by the learned Addl. District Judge No.1, Jodhpur on 3/12/1996 by which the eviction decree of trial court was reversed and thus being aggrieved by the same, the plaintiff landlords have preferred the present second appeal under Section 100 CPC on 13/2/1997 in this Court in which, while admitting the present second appeal, the coordinate bench of this Court framed the following substantial questions of law on 19/2/1997:-

(2.) The bone of contention between the parties and the ground on which the appellate court has reversed the eviction decree while deciding issue no.1, 1-A and 1-B at page 10 to 18 of its impugned judgment are two fold (i) that the plaintiff landlord had the first floor space of five rooms available in Abdulla Building 'B' situated at Station Road in front of Abdulla Building 'A' in which the suit shops no.11 on the ground floor are situated and the plaintiff landlord could use the said first floor space in Abdulla Building 'B' for setting up the crockery business of Abdulla Farooq in these premises, which was available at the time of filing of the suit itself, but the wife of the appellant landlord No.1 Ahmed Farooq and mother of four sons, named above, had started the small hotel business in the said five rooms as Taj Hotel and (ii) that during the pendency of the appeal by tenant before the first appellate court, another shop No.1 in Abdulla Building 'B' had become available to the plaintiff landlord through an eviction decree against one Danmal in the year 1990, of which vacant possession was obtained in 1993 only according to the plaintiff landlord and, therefore, the defendant tenant contends that such shop in Abdulla Building 'B' measuring 11 ft. in front, 17 ft. in depth and of 4 ft. width at the back side, a triangular shop, adjacent to the stair case of the Taj Hotel started by the wife of appellant no.1 existed.

(3.) Mr. J.R.Patel, learned counsel appearing for the plaintifflandlord relying upon various case laws, discussed hereinbelow, submitted that the well settled legal position in this regard is that the landlord is the best judge to adjudge his business and personal need and the tenant can hardly dictate terms in this regard, nor the first appellate court could substitute its own opinion as to which premises would be suitable for carrying on the business by the family members requiring the suit premises. He, therefore, submitted that there is no dispute that in Abdulla Buiding 'A', suit shop no.11 in possession of defendant tenant where he was carrying on the business of selling and repair or bicyles existed on ground floor, where plaintiff' sons appellant no.2, Abdulla Farooq wanted to start his crockery business, was the most suitable for him and the tenant could not contend that the triangular shop No.1 in Abdulla Building 'B', which had become available to the father of the plaintiff appellant no.2, who has started his business of M/s Jodhpur Travel Agency after his retirement from Railways as TTE, is suitable for setting up the crockery business as against the suit shop, which was of much bigger size of 15' x 30' & much more suitable for the said son.