RAMESH CHAND BIHARI LAL BAJAJ Vs. RAVINDRA KUMAR

JUDGEMENT

(1.) The defendant-appellant has preferred this civil second appeal tinder Sec. 100 of the Code of Civil Procedure against the judgment and decree dt. 19.02.2004 passed by the Additional District Judge, Gangapurcity (District Sawaimadhopur) in Civil Regular Appeal No. 26/2001 whereby the learned appellate Court has upheld and affirmed the judgment and decree dt. 2.5.2001 passed by the trial Court i.e. Civil Judge (Senior Division) Gangapurcity (District Sawaimadhopur) in Civil Suit No. 51/99 whereby the learned trial Court decreed the suit for eviction filed by the plaintiff-respondent. It is an admitted fact between the parties that the suit shop was let out to the appellant-tenant by one Shri Vishambhar Dayal on 19.1.1984 at the monthly rent of Rs. 375/- and the respondent-landlord purchased the same from Shri Vishambhar Dayal on 16.12.1991 by registered sale deed in lieu of sale consideration of Rs. 1,50,000/- during the subsistence of the tenancy and since the date of purchase the appellant became tenant of the respondent and relation of landlord and tenant established between them. It is also an admitted fact that before the suit shop was sold to the respondent its previous owner Shri Vishambhar Dayal filed Civil Suit No. 10/1989 for eviction against the appellant on the ground of bonafide and reasonable necessity and the same was pending in the Court when the transaction of sale and purchase of the suit shop took place. It is also an admitted fact that the respondent was doing cloth business as a partner alongwith his elder brother-Shri Ram Gopal and mother Smt. Shanti Devi in the partnership firm M/s. Ram Gopal Ravindra Kumar in a shop adjoining to the suit shop.

(2.) The respondent filed suit for eviction against the appellant on 24.2.92 with the averment that from 31.3.1991 he has retired from the partnership firm M/s. Ram Gopal Ravindra Kumar and since then no shop was available to him for his independent and separate business and therefore, he purchased the suit shop so that he can start his own business in it and, therefore, the same is required by him bonafide and reasonably. It was further averred that appellant has been allotted a shop in 'Katla' which is suitable and adequate for his business whereas no alternative accommodation is available to the respondent for his use and occupation and in case decree for eviction is not passed in comparison to the appellant he will face more hardship. In the written statement it was averred by the appellant that the respondent has not retired or separated from the partnership firm M/s. Ram Gopal Ravindra Kumar and he is still doing business as a partner of the same firm in the adjoining shop and. therefore, the need shown by him is neither bonafide nor reasonable. It was also averred by the appellant that he does not have alternative shop for his use and occupation and in the event of decree for eviction being passed he will face more difficulty in comparison to the respondent. On the basis of pleadings of the parties, necessary issues were framed by the trial Court and both the parties produced oral as well as documentary evidence in support of their respective case. After hearing both the parties, the trial Court decreed the suit filed by the respondent. On the basis of evidence available on record the Court found that the respondent has retired from the partnership of the above said firm and he is no more partner in it and he is in need of his own independent and separate business and, therefore, the requirement shown by him is both, bonafide and reasonable. It was also found that the respondent has no alternative accommodation for his use and occupation whereas the appellant has been allotted a piece of land to construct a shop by Municipality in 'Katla' and he also has a shop in his possession which can be used by him for his business. It was also found by the trial Court that appellant made no serious efforts to take some other shop on rent or otherwise for his use and occupation. As a consequence of these findings, the suit was decreed. Feeling aggrieved, the appellant filed appeal under Sec. 96 CPC and the same was dismissed by the appellate Court vide judgment and decree dt. 19.2.2004. Learned appellate Court re-appreciated and re-evaluated in detail the evidence available on record including the bills Ex.A-10 & Ex.A-11, photographs Ex.A-8, Ex.A-12 & Ex.A-13 and application for Ration Card Ex.A-15. It was also found by the appellate Court that the respondent has retired from partnership w.e.f. 1.4.1991 and he has no other alternative accommodation for his use and occupation whereas appellant has been allotted a plot of land to construct a shop. Still dissatisfied, the appellant-tenant is before this Court by way of this civil second appeal.

(3.) After hearing counsel for the respective parties, the appeal was admitted vide order dt. 26.7.2004 on the following substantial questions of law:--