MOHAMMED HUSSAIN Vs. ABDUL RAHIM

JUDGEMENT

(1.) THIS is the plaintiff's second appeal arising out of a suit for eviction.

(2.) THE premises in dispute is a Kachcha house situate in Jaipur City. The said premises were let out to the defendant Abdul Rahim on 1st December, 1966 on a monthly rent of Rs. 6/- per month. The said premises were purchased by the plaintiff, Smt. Umrao, on 21st Sept., 1971. After purchasing the said premises, the plaintiff served a notice dated 25th April, 1972 requiring the defendant to vacate the premises and on his failure to do so, the plaintiff filed the suit giving rise to this appeal on 15.7.1972. The said suit was pased on the ground that the defendant had failed to pay the rent for the premises for the period from 21st September, 1971 and further that the premises were required by the plaintiff for personal occupation, as she is living in a rental premises. The said suit was contested by the defendant. The Munsif and Judicial Magistrate First Class, Jaipur City (East), Jaipur, by his judgment and decree dated 3rd May, 1977, decreed the suit of the plaintiff. The Munsif found that the defendant was a tenant of Mumtazuddin, Nizamuddin and Kallu from 1st December, 1965 on monthly rent of Rs. 6/- per month; that he had executed a rent note in their favour and that after the premises had been purchased by the plaintiff he became the tenant of the plaintiff. As regards the default in payment of rent, the Munsif held that since the defendant had deposited the amount of rent, he could not be evicted on that ground. The Munsif, however, found that the premises were required reasonably and bonafide by the plaintiff for her own occupation and further that the plaintiff had no other house for her residence whereas the defendant could stay with his son and that as compared to the defendant, the plaintiff would suffer greater hardship if a decree for eviction was not passed in her favour. The defendant Abdul Rahim filed an appeal against the said judgment and decree of the Munsif and the said appeal was allowed by the Addl. District and Sessions Judge No. 6, Jaipur by his judgment and decree dated 5th February, 1979. The Addl. District Judge affirmed the finding recorded by the Munsif that the defendant was a tenant of Mumtazuddin, Nizamuddin and Kallu on monthly rent of Rs. 6/- and that after the said premises had been purchased by the plaintiff, he became the tenant of the plaintiff. The Addl. District Judge disagreed with the findings recorded by the Munsif on issue No. 4 relating to personal necessity of the plaintiff and issue No. 7 relating to comparative hardship. He held that the evidence adduced by the plaintiff to show that the landlord wanted to evict her from the premises in which she is staying at present, could not be looked into because no such plea has been raised by her in the plaint. The Addl. District Judge observed that the only averment that has been made by the plaintiff, in the plaint, is that she wanted to reside in the house purchased by her and that she does not want to reside in rented premises and has expressed the view that the mere desire of the plaintiff to live in her own house could not be regarded as a reasonable and bonafide personal necessity. With regard to comparative hardship also the Addl. District Judge held that the wife of the defendant had died and his meals come from the house of his son who lives nearby with his wife and that if the defendant is recorded to vacate the premises he would suffer greater hardship. In view of his finding on issue Nos. 4 and 7, the Addl. District Judge allowed the appeal of the defendant and dismissed the suit of the plaintiff. Feeling aggrieved by the aforesaid judgment and decree of the Addl. District Judge, the plaintiff Smt. Umrao filed the present appeal.

(3.) SHRI A.K. Bhandari, the learned counsel for the appellants has assailed the findings recorded by the Additional District Judge and has urged that the Additional District Judge has erred in holding that the plaintiff did not need the premises reasonably and bonafide for the personal occupation. In this connection the submission of Shri Bhandari is that the Additional District Judge should not have ignored the evidence of Abdul Rahim PW1, Kamruddin PW3, Mohd. Hussain PW4 and Abdul Hafiz PW6 which shows that the landlord of the plaintiff wants the premises which were in the occupation of the plaintiff and wants to evict her from the said premises. Shri Bhandari has also urged that from the evidence on record it is established that the plaintiff was paying a sum of Rs. 15/-, as rent for the premises in her possession and that the rent paid by the defendant to the plaintiff is only Rs. 6/- per month which shows that the plaintiff was paying a higher amount of rent for the premises in her occupation and therefore, the need of the plaintiff to reside in her own house is bonafide and reasonable. In support of his aforesaid submission Shri Bhandari has placed reliance on the decisions of this Court in Babu Ram v. Narayan Das, 1959 RLW 81 and Heera Lal v. Panna Lal, 1974 WLN (UC) 365, as well as the decision of the Supreme Court in Om Prakash v. Bhagwan Das, 1986(2) RCR 392 : 1986(2) UJ (SC) 237 and the decision of the Mysore High Court in Gopal Rao Shiddoji Shedge v. Kashappa Chandra Sekhar Telsang, 1970 RCR 15. Shri Bhandari has also urged that the appellants would suffer greater hardship as compared to the respondents and in this connection he has submitted that the so-called necessity of the defendant about his meals being supplied from the house of his son living nearby no longer subsists because defendant has died and his sons are living separately.