Premraj And Another vs Brij Mohan
2021 Latest Caselaw 45 Raj/2

Citation : 2021 Latest Caselaw 45 Raj/2
Judgement Date : 5 January, 2021

Rajasthan High Court

Premraj And Another vs Brij Mohan on 5 January, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Second Appeal No. 276/2013

1.      Premraj S/o Shri Kisturichand Soni Proprietor M/s Jyoti
        Photo Studio, Agrasen Bazar No.1, Inside Ajmeri Gate,
        Beawar Distt. Ajmer, Raj.
2.      M/s Jyoti Photo Studio, Agrasen Bazar No.1, Inside Ajmeri
        Gate, Beawar Distt. Ajmer, Raj. Through Its Proprietor
        Premraj S/o Shri Kisturichand Soni Agrasen Bazar No.1,
        Inside Ajmeri Gate, Beawar Distt. Ajmer, Raj.
                                                                 ----Appellants
                                   Versus
Brijmohan S/o Ramakishan Bhutara, Mahaveerganj Beawar Since
Deceased Through Sanjeev Kumar S/o Late Shri Brijmohan
Bhutara R/o Mahaveerganj Beawar, Manager/karta Joint Hindu
Family Namely Brijmohan Sanjeev Kumar Bhutra, Beawar, Raj.
                                                                ----Respondent

For Appellant(s) : Mr. Bharat Saini, through V.C. For Respondent(s) : Mr. Deepak Sharma on behalf of Mr. S.D. Sharma, through V.C.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

05/01/2021

1. Instant second appeal has been filed by the appellants-

defendants against the order dated 30.07.2013 passed by learned

Additional District Judge No.3, Beawar, District Ajmer, whereby the

appeal filed on behalf of the respondent-plaintiff was allowed and

the judgment and decree dated 27.05.2006 passed by the learned

Trial court was set-aside.

2. Brief facts of the case are that the respondent-plaintiff filed a

suit for eviction against the appellants-defendants on the ground

of bona-fide necessity and for non-user of property (shop). The

(2 of 4) [CSA-276/2013]

disputed shop was taken on rent by the appellants-defendants in

the year 1964 and the suit was filed in the year 1989. The learned

Trial Court framed as many as ten issues and after recording the

evidence of both the parties, the learned Trial Court dismissed the

suit filed by the respondent-plaintiff vide judgment and decree

dated 27.05.2006. Being aggrieved by the judgment and decree

dated 27.05.2006, the respondent-plaintiff filed a regular appeal

before the learned Appellate Court and the learned Appellate

Court allowed the appeal filed on behalf of the respondent-plaintiff

vide its judgment and decree dated 30.07.2013 and set-aside the

judgment and decree dated 27.05.2006 passed by the learned

Trial Court. Hence, this second appeal has been filed by the

appellants-defendants.

3. Counsel for the appellants-defendants submits that the

respondent-plaintiff is residing at Bangalore where he is doing his

business. Counsel further submits that the respondent-plaintiff is

also having alternative places for his business at Beawar.

4. Counsel for the respondent-plaintiff submits that it is within

the domain of the respondent-plaintiff to choose the place for his

business. Counsel further submits that the learned Appellate Court

has not committed any illegality in allowing the appeal and

setting-aside the judgment and decree dated 27.05.2006 passed

by the learned Trial Court. Counsel further submits that the finding

recorded by the learned Appellate Court on issues No.3 & 4 with

regard to bona-fide necessity and comparative hardship is correct

and justified and requires for no interference.

5. Lastly, counsel for the respondent-plaintiff submits that the

judgment and decree dated 30.07.2013 passed by the learned

(3 of 4) [CSA-276/2013]

Appellate Court has already been executed by the learned

Executing Court and possession of the disputed shop has already

been handed over to the respondent-plaintiff on 12.12.2013.

6. Heard counsel for the parties and perused the record.

7. The First argument raised by the counsel for the appellants-

defendants that the respondent-plaintiff is doing his business at

Bangalore, has no merit, as it is for the owner of the property to

choose the place of business, as per his choice and the

respondent-plaintiff is having the property at Beawar where he

wants to start his new business.

8. In support of his contention, counsel relied upon the

judgment passed by the Hon'ble Supreme Court in the matter of

Bhupinder Singh Bawa Vs. Asha Devi, reported in 2016 (10)

Supreme Court Cases 209 where in para 12 it has been held as

under:-

"12. In light of the above, Additional Rent Controller and the High Court rightly concluded that no alternative premises were lying vacant for running business of respondent's son. The High Court rightly relied on the ratio of Anil Bajaj v. Vinod Ahuja to hold that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to which shop her son should start the business from."

9. The second argument raised by the counsel for the

appellants-defendants that the respondent-plaintiff is having

alternative accommodation for his business is also not acceptable,

as the learned Appellate Court recorded a finding against the

appellants-defendants in this regard.

(4 of 4) [CSA-276/2013]

10. In my considered view, the learned Appellate Court has not

committed any illegality in reversing the finding on issue No.5.

11. In that view of the matter, no substantial question of law is

involved in this appeal and considering the fact that possession of

the disputed shop has already been handed over by the

appellants-defendants to the respondent-plaintiff in the year