Suresh And Anr vs Govind Narayan Rajoria
2023 Latest Caselaw 1549 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil First Appeal No. 236/2017

1.     Suresh S/o Radheyshyam, R/o Kundal, Present R/o Near
       Lalsot Bus Stand, Dausa District Dausa Rajasthan
2.     Hanuman Sahai S/o Shri Bhorilal, R/o Somnath Nagar,
       Agra Road, Dausa Rajasthan
                                                                  ----Appellants
                                    Versus
Govind Narayan Rajoria S/o Gangadhar Rajoria, R/o Kateekan
Mohalla, Dausa District Dausa Rajasthan
                                                                 ----Respondent

For Appellant(s) : Mr. Harshad Kapoor, Adv. on behalf of Mr. Rajesh Kapoor, Adv.

For Respondent(s) : Mr. Manoj Bhardwaj, Adv.

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

ORDER RESERVED ON :: 30.01.2023

ORDER PRONOUNCED ON :: 04.02.2023

The appeal under Section 96 CPC filed by the

appellants/defendants (for short 'the defendants') against the

judgment and decree dated 02.01.2017 passed by Additional

District & Sessions Judge, Dausa, District Dausa, Rajasthan in Civil

Suit No.20/2001 (47/2008) whereby the suit filed by the

respondent/plaintiff (for short 'the plaintiff') for eviction and

recovery of rent has been decreed.

Brief facts of the appeal are that plaintiff filed a suit for

eviction and recovery of rent against the defendants alleging that

on 01.06.1993 defendant No.1 took the disputed shop on rent

from plaintiff for five years, rent of which was fixed at Rs.1,000/-

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per month. Defendant No.1 did not vacate the suit shop on

01.06.1998. Thus, rent of the shop was enhanced to Rs.3,000/-

per month. The said rent was paid till May 1999. After that, the

defendant No.1 promised to vacate the disputed suit property till

the year 2000 but after May 1999, he did not pay the rent and

sublet the disputed shop to the defendant No.2 in May 1999.

Plaintiff required the suit property for bona fide necessity of his

son.

After service of summons, defendants did not appear before

the trial court and trial court decreed the suit ex-parte against

them on 07.03.2003. Defendants separately filed an applications

for setting aside the ex-parte decree. The trial court set aside the

ex-parte decree against the defendant No.2 but dismissed the

application of defendant No.1. Defendant No.1 filed a review

application. The said application was also dismissed. After that,

defendant No.1 filed a S.B. Civil Writ Petition No.5501/2010 titled

Suresh Vs. Govindnarayan. The said petition was also dismissed.

Defendant No.1 also filed a Civil Misc. Appeal but said appeal was

also dismissed. The ex-parte decree passed against him attained

finality.

Defendant No.2 filed written statement and counter claim

and stated that defendant No.2 took the disputed shop on rent of

Rs.1000/- per month from plaintiff by oral agreement dated

01.05.1992. Defendant No.1 never took the dispute shop on rent

from the plaintiff. So, no occasion arose for subletting the suit

shop: The defendant No.2 also stated that plaintiff had taken

Rs.30,000/- but he had not returned the said money. The said

money was to be adjusted in rent. Defendant No.2 also mentioned

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in written statement, there is no bona fide necessity of the

disputed shop for the plaintiff's son. So, suit be dismissed.

Trial court framed the following issues on the basis of

pleadings of the parties :-

(i) Whether as mentioned in para 1 of the plaint, disputed shop measuring 8 x 7 ft. which was taken on rent by defendant No.1 on 01.06.1993 had been subletted to defendant No.2 Hanuman Sahai in 1999 without permission of the plaintiff in which the defendant No.2 is doing business?

(ii) Whether defendant No.2 Hanuman Sahai has taken the disputed shop on rent at Rs.1000/- per month by oral agreement from plaintiff on 01.05.1992 and since then, the defendant No.2 is doing business in disputed shop as a tenant?

(iii) Whether plaintiff had borrowed Rs.20,000/- from defendant No.2 Hanuman on 01.05.1992 and Rs.10,000/- before Ganesh Chaturthi in the year 1999 of which the defendant No.2 is entitled for adjustment in the rent?

(iv) Whether defendant No.2 is entitled to fix standard rent of disputed shop at Rs.150/- per month under Section 6 on the basis of written statement in counter claim?

(v) Whether the suit of the plaintiff is liable to be dismissed with cost of Rs.20,000/-?

(vi) Whether the suit property is reasonably and bonafidely required by the plaintiff for business need of him and his son Vikas?

(vii) If disputed shop is not vacated, three will be more comparative hardship to the plaintiff than the defendant?

(viii) Whether partially eviction is possible from the disputed shop?

(ix) Relief?

To prove the suit, plaintiff examined himself as PW1 and got

examined PW2-Umesh Chand Rai, PW3-Leelaram, PW4-Vikas,

PW5-Kiran Dutt Sharma, PW6-Malkhan, PW7-Banwari Lal.

Defendant Hanuman Sahai was examined as DW1 and got

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examined DW2-Pannalal Sharma, DW3-Ramesh Chand Sharma,

DW4-Suryanarayan Sharma, DW5-Heeralal Sharma, DW6-Nawan

Kishore, DW7-Dinesh Gupta.

Trial court decided the issue Nos.1 to 3 simultaneously and

decreed the plaintiff's suit. Hence this appeal.

Learned counsel for the defendant No.2 submits that ex-

parte decree on 07.03.2003 attained finality against the defendant

No.1. So, trial court wrongly passed the present eviction decree

against the defendant No.1. So, present judgment and order

passed by the trial court suffers from illegality. Learned counsel for

the defendant No.2 stated that there is material contradiction in

the pleadings and proof of the plaintiff. Plaintiff miserably failed to

prove that defendant No.1 was his tenant because no rent note or

rent receipts were produced by the plaintiff in the evidence.

Learned counsel for the defendant No.2 also stated that as per the

version of the plaintiff, defendant No.1 subletted the disputed

premises in the year 1999 but he had filed the present suit in the

year 2001 after delay of two years. Learned counsel for the

defendant No.2 also submits that as per the version of the

plaintiff, his son was running business outside the disputed shop.

So, he would have knowledge regarding subletting of the disputed

shop. Learned counsel for the defendant No.2 also submits that

defendant No.2 in its evidence clearly stated that he was doing

business in disputed shop and he had exhibited the bills, but court

below had not considered the said documentary evidence. Learned

counsel for the defendant No.2 also submits that defendant No.2

had filed an application before the trial court for determination of

the provisional rent but trial court had not determined the

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provisional rent. Learned counsel for the defendant No.2 also

submits that when plaintiff wanted to evict him forcefully, then he

had filed the injunction suit in which plaintiff gave the undertaking

that without due process of law he would not evict him. So,

contention of the plaintiff also shows that defendant No.2 was

original tenant of the plaintiff. Learned counsel for the defendant

No.2 also submits that plaintiff wanted to examine the defendant

No.1 in his evidence for tenancy of the defendant No.2 but trial

court had not permitted to summon the defendant No.1 for the

purpose. So, in these circumstances, it is well proved that

defendant No.2 was tenant of the plaintiff. Therefore, finding on

these issues of the trial court be set aside.

Learned counsel for the plaintiff has opposed the arguments

advanced by learned counsel for the defendant No.2 and

submitted that it is an admitted position that ex-parte decree was

passed against the defendant No.1 on 07.03.2003, which had

attained finality. So, there is no need to decide that defendant

No.1 was not tenant of the plaintiff. Learned counsel for the

plaintiff also submitted that trial court had given elaborate findings

in deciding these issues against the defendant No.2 and clearly

stated that bill produced by the defendant No.2 did not disclose

the defendant No.2 as a tenant. Learned counsel for the plaintiff

also submitted that trial court also not considered the defendant

No.2 as a tenant of the plaintiff. So, trial court rightly denied for

determination of the provisional rent. Learned counsel for the

plaintiff also submitted that during the evidence, defendant No.2

had not produced license issued Under Shop and Establishment

Act. So, order of the trial court on these issues be affirmed.

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I have considered the arguments advanced by learned

counsel for the defendant No.2 as well as learned counsel for the

plaintiff.

It is an admitted position that ex-parte decree dated

07.03.2003 attained finality against the defendant No.1. It is also

an admitted position that defendant No.1 was tenant of the

plaintiff. Trial court rightly came to the conclusion that defendant

No.2 had not produced any evidence regarding landlord-tenant

relationship between him and plaintiff. So, in my considered

opinion, trial court rightly held that defendant No.1 had subletted

the disputed shop to the defendant No.2 in the year 1999. So,

finding of the trial court in aforementioned issues does not suffer

from any illegality or infirmity. Trial court rightly decided these

issues against the defendant No.2.

Learned counsel for the defendant No.2 submits that the trial

court wrongly decided the issue of bonafide necessity against the

defendant No.2. Learned counsel for the defendant No.2 also

submits that during pendency of the suit as well as appeal, other

premises of the plaintiff were vacated and defendant No.2

submitted the photographs as Ex.147-A in which plaintiff put

board on the premises that there are vacant shops in the

premises. So, plaintiff had no reasonable and bonafide necessity

to do business in the disputed premises. So, issue be decided

against the plaintiff.

Learned counsel for the plaintiff submits that plaintiff by his

evidence and witnesses evidence clearly proved that plaintiff had

reasonable and bonafide necessity for disputed premises. Learned

counsel for the plaintiff also submits that it is a settle proposition

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of law that landlord is master of his need and tenant cannot direct

him to choose other places. So, trial court rightly decided the

issue of the reasonable and bonafide necessity in favour of the

plaintiff.

I have considered the arguments advanced by learned

counsel for the defendant No.2 as well as learned counsel for the

plaintiff.

Plaintiff by their evidences clearly proved that disputed

premises is required for business of plaintiff's son. It is also settled

proposition of law that landlord is master of his need and tenant

cannot direct the landlord for choosing other place. So, in my

considered opinion, trial court rightly decided the issue regarding

reasonable and bonafide necessity of the disputed shop in favour

of plaintiff. So, present appeal being devoid of merit is liable to be

dismissed, which stands dismissed accordingly.

All the pending applications, if any, stand dismissed.

(NARENDRA SINGH DHADDHA),J

Jatin/79

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