NIRMAL KUMAR Vs. BISHANDAS

JUDGEMENT

(1.) Appellants-defendants have filed this second appeal under Sec. 100 of the Code of Civil Procedure, assailing judgment and decree dtd. 14/11/2000 passed by Additional District Judge No.4, Kota in appeal No. 20/99, affirming the judgment and decree dtd. 7/10/1996 passed by Additional Civil Judge (Junior Division) No.1, Kota (South) in Civil Suit No. 650/89 whereby suit for rent and eviction has been decreed in favour of respondent- plaintiff.

(2.) The relevant facts as culled out from the record are that one shop situated at Chhawni Chauraha, Kota was in tenancy of the defendant Dr. Nirmal Kumar at the rate of Rs.140.00 per month. Respondent-plaintiff-landlord instituted a civil suit for eviction against defendants on 28/10/1989, on the ground of default, bonafide and personal necessity and sub-letting invoking the provision of Sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred as "the Act of 1950). Plaintiff alleged the necessity of rented shop for his grandson- Mukesh to start the grocery business in the rented shop. Defendant tenant submitted written statement denying the default and bonafide necessity of plaintiff. Defendant took defense that plaintiff has other shops in his house and if he is desirous to start business of grocery for his grandson, the alternative shop is available with him, hence, the necessity alleged by plaintiff was denied to be bonafide and reasonable. It may be noticed that in the written statement defendant never took any defense that plaintiff's grandson- Mukesh is not family member of plaintiff and for his necessity plaintiff could not bring the eviction suit. The trial Court on the basis of rival pleadings of both parties settled issues and recorded evidence of both parties.

(3.) Since in the present eviction suit, apart from the ground of bonafide and reasonable necessity, the ground of default was also involved, therefore, the provisional rent was determined under Sec. 13(3) of the Act of 1950. The trial Court while decided the eviction suit finally vide judgment dtd. 7/10/1996 observed that the defendant-tenant has paid provisional determined rent and has not committed any further default, hence, the defendant was declared as defaulter but benefit of first default was extended under Sec. 13(6) of the Act of 1950. The trial Court while decided the issue of bonafide necessity, evaluate the evidence of both parties. From the plaintiff's evidence, it came on record that plaintiff's grandson- Mukesh has attained the age of 23 years and he is unemployed and wants to start a business of general store. Plaintiff also adduced evidence that no other vacant alternative shop is available to be used for business of his grandson. Defense of the defendant, that the grandson of plaintiff is already partner in Chawla Brothers or Anand Industries, was not found proved. Another defense of the defendant that plaintiff has other vacant shops in his possession was also not found proved. Thus, on appreciation of respective evidence of both parties, the trial Court decided the issue of bonafide and reasonable necessity in favour of plaintiff-landlord. The connected issues of comparative hardship and partial eviction were also considered and it was observed by the trial Court that the plaintiff would suffer comparative hardship in case of not allowing the eviction. Further it was observed that rented shop is one shop and its partition is not possible, hence, the partial eviction would not be possible nor would fulfill the need of plaintiff. Accordingly, both the issues were also decided in favour of plaintiff. The issue of sub-letting was held against plaintiff. Finally decree for eviction was passed by the trial court on the ground of bonafide and reasonable necessity vide judgment dtd. 7/10/1996.