SHREE AGENCIES Vs. POONAM CHAND BANTHIA

JUDGEMENT

(1.) SINCE common points are involved, both the appeals were heard together. Brief facts giving rise to both the appeals are that the respondent-plaintiff Poonam Chand instituted a civil suit No. 12/1992 on 14. 10. 1991 for eviction of suit shop measuring 8'x7' against M/s. Kishan Lal Bhojraj Dugar and its partners. Second suit No. 576/1991 was instituted on 13. 11. 1991 for another adjoining shop of the same measurements against the sister concern namely M/s. Shree Agencies and its partners with the averments that both the shops were let-out on 20. 3. 1979 at monthly rent of Rs. 100/- and both the shops are required reasonably and bonafide for plaintiff's son Alok Jain to carry on computer business. It was also pleaded that since plaintiff himself is out of job, he would also help his son. Written statements were submitted. While admitting tenancy the grounds of eviction were denied in toto and it was pleaded that the plaintiff wants to enhance the rent.

(2.) ON the basis of the pleadings, issues were framed and after recording the evidence of the parties in both the suits learned Civil Judge (Junior Division) East), Jaipur City, Jaipur vide two separate judgments dated 2. 12. 1999 dismissed both the suits. The plaintiff filed two first appeals and both the appeals were allowed vide two separate judgments dated 8. 8. 2002 by learned Additional District Judge No. 5, Jaipur City Jaipur, Hence these two second appeals.

(3.) LEARNED counsel for the appellants has reiterated all the grounds upon which the trial court dismissed the suits for eviction. He further submitted that one adjoining shop was vacated by Suraj Mal after decision of the first Appellate Court and one other shop was vacated by M/s. Kushal Trading Company during pendency of the proceedings and thus requirement of the plaintiff as pleaded does not subsist. It was also submitted that Alok Jain had no experience of computer business and he did not take any step to start any such business and it shows that he never had any such intention to carry on computer business and only object of the respondents was to enhance the rent. According to learned counsel for the appellants, there was no ground for the first Appellate court to reverse the finding of the trial court based on evidence and the conclusions drawn by the first Appellate court are not based on any evidence and thus the finding of the first Appellate Court are perverse. It was also submitted that one shop vacated by M/s. Kushal Trading Company if taken to be room as contended on behalf of the respondent was used for business by earlier tenant and thus it can be used for computer business also. It was also submitted that the appellants are carrying on their business in the suit shops for a long time and keeping in view all the facts and circumstances, greater hardship would be caused to them. It was also submitted that partial eviction is possible as one shop vacated by Suraj Mal after judgment of the first Appellate Court is now with the respondent and thus suit shops may be given to the appellants. He placed reliance upon following judgments:- (i) In Panna Lal vs. Murlidhar (1), it was held that the grounds of eviction must exist on the date of filing of the civil suit and must continue to exist upto second appeal. In this case, the plaintiff-landlord died during the pendency of second appeal and on this ground it was held that necessity does not survive. But no such situation has arisen in the instant appeals. (ii) In M/s. Variety Emporium vs. V. R. M. Mohd. Ibrahim Naina (2), it was held that concurrent findings of lower courts may be interfered with if findings are shown to be manifestly unjust. (iii) In M. S. Zahed vs. K. Raghavan (3), it was held that High Court can re-appreciate the evidence to find out correctness of the order of the lower court. (iv) In Maqboolunnisa vs. Mohd. Saleha Quaraishi (4), it was held that during pendency of the proceedings in trial court, a shop adjacent to the demised premises was vacated and the appellant- landlady did not amend the pleading to assert that the vacated shop was not sufficient for her son's business and in that case, such evidence should not have been allowed that she would convert the shops into a big shop by breaking the wall and mere desire to have a very large shop cannot be equated with a genuine bona fide need. (v) In Deena Nath vs. Pooran mal (5), it was held that there must be an actual pressing need and not a mere whim or fanciful desire of the landlord. (vi) In Nilesh Nandkumar Shah vs. Sikandar Aziz Patel (6), it was held that the purpose of rent control legislation is to protect the tenants from unjust evictions at the hands of greedy or unscrupulous landlords. (vii) In S. J. Ebenezer vs. Velayudhan & Ors. (7), it was held that bona fide requirement of the landlord should be objectively tested and cannot be based on mere desire of the landlord and burden to prove is on the landlord. (viii) In Molar Mal vs. M/s. Kay Iron Works (P) Ltd. (8), the Hon'ble Supreme Court held that during pendency of the suit for eviction landlord got three plots through eviction proceedings, hence landlord is not entitled to evict the tenant. It was also held that High Court can go into the finding of the fact arrived at by the courts below and reverse the finding if it is based no no evidence.