GORDHAN DAS Vs. SOM DUTT

JUDGEMENT

(1.) THIS appeal is against the judgment and decree passed by the first appellate court dated 15. 9. 1994 by which the first appellate court reversed the decree of dismissal of the suit of the plaintiff dated 28. 11. 1990.

(2.) BRIEF facts of the case are that the plaintiff initially filed Civil Original Suit No. 338/78 for eviction of the same tenant-appellant, which according to the plaintiff, as per plaint allegation, was dismissed by the trial court on 25. 9. 1978 after giving benefit of first default to the tenant. The defendant in his written statement submitted that in fact the said earlier suit was filed for eviction of the appellant-defendant-tenant on the ground of same personal bona fide need for which the present suit has been filed. It is also specifically stated in the written statement that in earlier filed suit no. 338/78 the plaintiff also took a plea that the plaintiff wants to construct a stair-case within the suit premises. Said suit was withdrawn unconditionally and, therefore, the plaintiff's suit was dismissed on 25. 9. 1978 as withdrawn. The plaintiff did not choose to controvert these facts by filing rejoinder to the written statement of the defendant. However, when the defendant took another plea by amendment in the written statement by incorporating the fact that during the pendency of the suit, the plaintiff got possession of one shop from one Magan Lal Pareekh. That shop has been included in the adjoining shop where plaintiff's son Om Prakash was doing business. The present suit as well as the earlier suit for eviction were filed for the need of said Om Prakash also. Then the plaintiff filed rejoinder to the written statement of the defendant's amended written statement. In the rejoinder, the plaintiff only took the plea that the facts stated by the defendant are wrong and further stated that the defendant-plaintiff did not disclose when Magan Lal vacated the shop and handed over possession to the plaintiff. It will be worthwhile to mention here that there is no specific denial that during pendency of the suit that Magan Lal did not vacate any shop of the plaintiff. Be it as it may be, the trial proceeded to determine the issue of personal bona fide need of the plaintiff and his sons. The plaintiff's present case was that the suit premises is required for the need of the plaintiff's sons Om Prakash and Ashok Kumar and for the purpose of constructing a stair-case for reaching to the roof. The defendant as stated above, contested on all facts in the trial court and issues were framed and thereafter after evidence of the parties, the trial court dismissed the suit of the plaintiff by judgment and decree dated 28. 11. 1990. The trial court was also of the view that during the pendency of the suit, the plaintiff let out the shop to other tenant despite his claim for shop for the need of plaintiff's sons.

(3.) THE respondent-landlord submitted written reply to the application filed under Order 41 Rule 27 C. P. C. In reply, the plaintiff did not choose to deny filing of the suit by Om Prakash nor the family settlement dated 1. 4. 1984. However, according to the plaintiff, in the family settlement, the shop in question has not been included and, therefore, according to the learned counsel for the respondent, the shop in dispute remained only with plaintiff Som Dutt and therefore, he continued to be the owner of the suit property and Om Prakash is son of plaintiff Som Dutt and, therefore, the choice of the landlord cannot be doubted when he thinks it proper to give this shop to his son Om Prakash for his business. It is also submitted that the family settlement can be read as it is and it cannot be read in the manner in which the appellant-tenant wants to read. When a property has not been included in the family settlement then that cannot be included by implication. It is also submitted that the appellant-tenant never denied title of the property of plaintiff Som Dutt and today also is not denying title of plaintiff Som Dutt. In that situation, inspite of partition of the property of Som Dutt and his sons, the title of the property still vests in Som Dutt to the property in dispute. It is also submitted that filing of suit by Om Prakash against other tenant on the ground of personal bona fide necessity is absolutely irrelevant because of the reason that mere filing of suit cannot tantamount to satisfaction of the need of the plaintiff's son Om Prakash. It is also submitted that we cannot anticipate at this stage that Om Prakash's suit will be decreed for eviction of the tenants. It is also submitted that in that suit, though filed in the year 1993, yet the evidence has not started, therefore, because of this reason, the decree which has already been granted by the court below, cannot be set aside.