TIKAM CHAND Vs. RAM CHANDRA

JUDGEMENT

(1.) The appeal has arisen out of judgment dated 20.9.2012 passed by learned Additional District Judge No.3, Ajmer in Regular Civil Appeal No.5/2012, whereby the appeal was allowed and the judgment & decree dated 9.12.2011 passed by learned Additional Civil Judge (Jr. Div.) No.2, Ajmer was set aside and the suit filed by appellants/plaintiff was dismissed. Learned Additional Civil Judge (Jr. Div.) No.2, Ajmer in Regular Civil Suit No.226/2002 (06/2001) vide judgment dated 9.12.2011 decreed in favour of appellants/plaintiffs and directed respondent/defendant to hand over vacant possession of disputed shop within two months. Plaintiffs were also declared entitled to receive Rs.100/- per month as mesne profits from defendant.

(2.) In brief, facts of the case are that appellants/plaintiffs preferred a suit on 4.1.2001 against the respondent/defendant with the averments that the shop described in para no.1 of the plaint is in possession of respondent/defendant as a tenant on rent @ Rs.35/ per month, excluding electricity and water charges. The rented out premise is bona-fidely required to run business by plaintiff No.1 - Shri Tikam Chand (deceased), who has no other appropriate premises available. Plaintiff No.2 - Lekhraj is a goldsmith. He required the shop to run his goldsmith business. Respondent can do his business from some other shop. Presently, plaintiff No.2 is doing his business as a hawker. The plaintiffs are comparatively suffering more hardship then the defendant. No other alternate premise is available. Therefore, decree of eviction against defendant be granted. Defendant in his written statement denied the necessity of premises for plaintiff. Earlier, suit on the basis of necessity for plaintiff No.1 was rejected and the appeal is pending. Therefore, the present suit is not maintainable. In that earlier suit, the trial court did not accept the necessity of the premises, both for Tikam Chand and his son Lekhraj. Son of plaintiff is not doing business of goldsmith. He does business of toys and other articles, etc. casually by sitting at a place nearby premises in question. There is no bona fide necessity of the premises, rather plaintiffs used to get vacated the premises and thereafter again let out on higher rent. Only six feet wide place is required to run a business of goldsmith and the same is available near the premises in dispute. Therefore, alternate premise is also available. Defendant is earning bread and butter for twenty members of his family from only this shop. If, he is evicted, he will be deprived of business. Hardship will also be more to the defendant if the premises are being vacated. Therefore, the suit be rejected.

(3.) On the basis of pleadings, following issues were framed by the trial court : <IMG>JUDGEMENT_198_LAWS(RAJ)1_2017.jpg</IMG>