ASUJI BHARAT KUMAR Vs. SHANTILAL

JUDGEMENT

(1.) THIS appeal has been filed by the defendant, against the decree for eviction, passed by both the learned Courts below, on the ground of reasonable and bonafide necessity of the plaintiff, and by also deciding the question of comparative hardship and partial eviction, and subletting, against the appellant.

(2.) THE facts of the case are, that a suit for eviction has been filed on 23. 5. 85, by the three plaintiffs, being the heirs of Banshilal, i. e. his widow Radhabai, son Shantilal, and widowed daughter Shushila, alleging inter-alia, that the property described in para-1 of the plaint, being a Nohra including a shop, was let out to the defendant No. 1 (M/s. Ashuji Kewalchand) by the deceased landlord Banshilal and plaintiff No. 2 Shantilal, on 11. 2. 63, at a monthly rent of Rs. 42/-, the month of the tenancy was on the basis of Hindi Miti, rent note was executed on 14. 6. 63. THEn in Samvat Year 2030 a shop was constructed, therefore, the premises comprised of Nohra and shop, and since then the rent was increased to Rs. 100/ -. It was alleged, that since Banshilal has expired, his heirs being his widow, son and daughter have been impleaded as heirs. It was then alleged, that the defendant has neither tendered nor paid rent after Baisakh Vad Amavas Samvat 2037. Thus, 45 months' rent had fallen into arrear, and the defendant has become defaulter. THEn the plaintiff pleaded the premises to be reasonably and bonafide required by the plaintiff No. 2, pleading that presently the plaintiff No. 2 is sitting on his nephew's (Bhanja) shop. It was pleaded, that firstly that shop does not belong to Shantilal, secondly Shantilal had five nephews who require the shop for carrying on their business, and they want to evict Shantilal. Apart from all this, Shantilal needs a bigger premises, as he has one wife, four sons and two daughters, and apart from that, he would manufacture gold and silver ornament, refine the metal, and for that he would install machinery, and thus he needs a big Nohra. It was alleged, that the machines are presently installed at different place in Bhanwarlal Banshilal's shop, and he requires a shop for selling the prepared goods, and thus he requires the entire premises. It was pleaded that presently the refining work is required to be got gone by the plaintiff from other persons. It was also pleaded that the defendant does not require the shop, as defendant No. 1 has closed his business, and has further let out the premises to defendant No. 2 (M/s. Asuji Bharatkumar), and the grain business has been shifted to Krishi Upaj Mandi, and consequently the defendant No. 1 has shifted there, where he has a godown of much bigger size, and a shop, apart from the fact,that the defendant No. 1 has various other big plots, in Nehru Nagar, Mahavir Nagar, and Dhanmandi Scheme, Pali. It was also alleged that the defendant No. 1 has also purchased a shop near the disputed property, and if desires, it can get many other accommodation. It was also pleaded, that the defendant No. 1 has started textile business (trading in vials) in the name and style of Kumod Trading; at different place. Thus, he does not need the premises, and thus the comparative hardship is in favour of the plaintiff. It was then alleged, that the firm Ashuji Kewalchand has been closed some 5-6 years ago, and thus the defendant No. 1 does not need the shop. That apart Sohanraj, who was a partner in the said firm, and had purchased stamp, he and his other partner Mishrilal, have started separate business, in the name and style of Mishrimal Kewalchand, in godown No. 9 in Krishi Upaj Mandi, which is much bigger than the suit property, and is in the name of Mishrimal, and Sohanraj has another godown No. 50 in his name. Thus both the partners are carrying on independent business, and have much bigger sized godown. THE plaintiff then alleged, that the defendant No. 1 has handed over the premises to defendants No. 2, therefore also he is liable to eviction. Interalia with these pleadings prayer for eviction was made.

(3.) THE learned trial Court decided issue No. 1 and 7 together, and it was considered, that even according to the defendant, he has paid rent upto Baisakh Vad Amavash 2037. THEreafter rent was tendered but was not received, and money order was also refused. THEn, it was found that amount has not been deposited under Section 19a. THEn, after considering some judgments of this Court, it was found, that since the defendant has not deposited rent under Section 19a, nor has he given any notice to the plaintiff to inform his bank account, therefore, the defendant is defaulter, and both the issues were decided in favour of the plaintiff. THEn issues No. 2 and 3 relating to bonafide necessary and comparative hardship were also decided together. While deciding these two issues, the learned trial Court recapitulated the evidence of the parties, and then considered the contention of the parties, it was also considered, that the case is pending for the last 15-16 years, and during this time sons of plaintiff No. 2 has also grown up. THEn various judgments of this Court and Hon'ble the Supreme Court were considered, and it was found, that the plaintiff has reasonable and bonafide necessity, as his nephews want to evict him, and he has no other shop; then, the plaintiff is best judge of his requirement, as to where he wants to carry on his business. It was considered that apart from the plaintiff, he has four sons, and thus for five persons, to work, he requires the premises. THEn, considering comparative hardship, it was considered, that the defendant is, after all a tenant, and he should have prepared himself mentally, that sometimes he is to vacate, and therefore, if the tenant is required to take another premises on rent, it cannot be said to be uncalled for. Interalia with these findings, the two issues were decided in favour of the plaintiff. THEn, coming to issue No. 5 it was considered, that admittedly the shop was let out to defendant Asuji Kewalchand, which comprised of two partners, Sohanraj and Mishrimal, which firm has been dissolved vide Ex. A. 5, leaving partner of defendant No. 1, being Sohanraj, in his personal capacity, and thereafter he constituted another firm, being Asuji Bharatkumar, by inducting his son, and thereby he lost the right of continuing to be tenant, as it amounts to subletting. THEn the contention about the defendant No. 2 having paid the rent was negatived, on the ground that books of accounts of defendant No. 2 were not proved, while it was proved,that rent was paid by Sohanraj in his personal account, and does not appear to have been deposited in the capacity of partner of defendant No. 2. Thus the issue was decided in favour of the plaintiff. THEn, issue regarding material alternation was decided against the plaintiff. In the result the suit was decreed. During pendency of the suit of plaintiff No. 3 the daughter of Banshilal expired, and her legal representatives were substituted.