GENDKANWAR Vs. BHANWAR LAL

JUDGEMENT

(1.) This appeal under Section 96 CPC is directed against judgment and decree dated 19.03.2004 passed by Additional District Judge (Fast Track) No.2, Bhilwara, whereby, the suit filed by the plaintiff-respondent for eviction, arrears of rent and damages has been decreed.

(2.) The facts in brief may be noticed thus : the plaintiff Bhanwar Lal filed a suit with the averments that a shop and a room situated at Bazar No. 3, Bhopalganj, Bhilwara was let out to Hari Singh husband of defendant No. 1 and father of defendant Nos. 2 to 5; Hari Singh died; the defendants were in possession of the suit premises in their capacity as tenants; the rent of the shop and room was Rs. 600/- and Rs. 1200/- per month respectively; the shop was let out about 15 years back and the room was let out about 12 years back; the tenancy was oral; the rent of the premises was never tendered/paid in time and a sum of Rs. 54,600/- was outstanding towards rent of the shop as well as the room for different periods and defendants have committed several defaults; the defendants started to materially alter the suit premises and when despite request they did not desist, the plaintiff had to file a suit for permanent injunction; the suit property has been substantially damaged; the suit premises has been materially altered; the defendants prepare and ('refreshment items') by setting up a (stove), which results in smoke and pollution and, therefore, defendants have created nuisance; the defendants wash utensils and plates inside and outside the premises, which results in (mire) and the refreshment items are given in paper etc., which are thrown outside the gate, the customers park their vehicles and cycles in front of plaintiff's door, which results in huge inconvenience and in this manner the defendants create nuisance; elder son of the plaintiff Krishan Kumar is involved in the business of synthetic packing material and the suit shop and room were reasonably and bona fidely required for his business; in absence of the shop and the room plaintiff and his son are suffering inconvenience, plaintiff's son was not able to operate his business properly; the defendants would suffer no hardship in vacating the suit shop as they have two shops in front of Milan Talkies, which are lying vacant; the plaintiff is suffering comparatively more hardship; defendants have acquired a shop in the property of Samdani, where, he is conducting his business; the plaintiff's residence is near the suit shop and its entrance is very near to shop where the defendants' customers gather and the defendants put chairs, which results in inconvenience to the plaintiff and his family members from ingress and egress to the residential portion; based on the above allegations, the plaintiff prayed for vacant possession of the suit shop, arrears of rent, damages and mesne profit.

(3.) A written statement was filed by the defendants and generally the averments made in the plaint were denied; it was claimed that the suit premises was in possession of the defendants for about 22 years; the shop and the room were taken on rent together; the rent was regularly paid, however, when the plaintiff claimed non-payment, for ensuring that the defendants were not termed as defaulters, account payee cheque was sent to the plaintiff, however, the same was sent back; the rent was paid yearly as per plaintiff's convenience; ultimately, the rent was deposited under the provisions of Section 19A of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 ('the Act'); the allegations about material alternation were denied; the allegations about smoke and pollution were also denied and it was claimed that the refreshment items were prepared on LPG Gas and Kerosene Stoves, which also do not result in any nuisance; the suit shop was let out knowing fully well that the same would be used for preparation and sale of etc. and for the said purpose stoves would be used and water will be used for washing the utensils and, therefore, the plaintiff has no cause; the defendants were conducting the business for more than 22 years and the sudden filing of the suit on the said facts is sufficient to prove the mala fides i.e. for getting the suit premises vacated and for enhancement of the rent; paper etc, are not used, but plates and glasses are used and the customer, who wants to take goods at home, is delivered the same in polythene bags; vehicles are not parked in front of plaintiff's door and no mire is created; the suit premises is not required for reasonable and bona fide requirement; plaintiff's son was not conducting any business of synthetic packing material; the averments relating to comparative hardship were also denied and it was claimed that defendants' family is dependent on the income of the said shop; counter claim was made seeking determination of standard rent and, ultimately, it was prayed that the suit be dismissed.