Shri Maharshi Gautam Vidya ... vs Shri Maharshi Gautam Chhatrawas ...
2023 Latest Caselaw 2086 Raj/2

[2023/RJJP/002545]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 353/2019

Shri Maharshi Gautam Vidya Niketan Samiti, Through President
Atulmani Sharma, Arvind Traders, Ladpura Kota
                                                         ----Defendant-Appellant
                                       Versus
Shri Maharshi Gautam Chhatrawas Samiti, Agrasen Bazaar,
Purani Dhanmandi Kota Through Phoolchand Sharma
                                                          ----Plaintiff/Respondent

For Appellant(s)               :    Mr. Manoj Sharma
For Respondent(s)              :



        HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                                        Order

13/02/2023

This civil second appeal has been preferred against the

judgment and decree dated 22.05.2019 passed by the learned

Additional District Judge no.4, Kota in Civil Regular Appeal

No.6/2013 (for brevity "the learned appellate Court") whereby,

while allowing the appeal filed by the respondent/plaintiff

(hereinafter referred to as "the plaintiff"), the judgment and

decree dated 27.02.2013 passed by the learned Additional Civil

Judge (Junior Division) No.1, (North) Kota (for short "the learned

trial Court) in Civil Case No.78/2001 dismissing the suit for

eviction, has been reversed.

The relevant facts in brief are that the plaintiff filed a suit for

eviction against the appellant/defendant (for brevity "the

defendant") from the suit premises comprising of three rooms on

the ground floor and eight rooms & two halls on the first floor on

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the grounds of default in payment of rent, reasonable and

bonafide necessity, nuisance and substantial damage to the

premises by the defendant diminishing its value. It was averred in

the plaint that the subject premises were required for hostel for

the students of Shri Maharshi Gautam Samaj.

On the basis of pleadings of the parties, seven issues were

framed. After recording evidence of the respective parties, the

learned trial Court vide its judgment and decree dated 27.02.2013

decided the issues of default in payment of rent, substantial

damage to the premises by the defendant and nuisance against

the plaintiff; but, while deciding the issue of reasonable and

bonafide necessity in favour of the plaintiff, dismissed the suit

deciding the issues No.3 & 4 in favour of the defendant pertaining

to comparative hardship and partial eviction. The civil first appeal

preferred by the plaintiff has been allowed by the learned

appellate Court vide its judgment and decree dated 22.05.2019.

Assailing the impugned judgment and decree, learned

counsel for the defendant contends that the learned appellate

Court erred in reversing the findings recorded by the learned trial

Court based on appreciation of evidence on record. He submitted

that while allowing the appeal, the learned appellate Court did not

appreciate that the school was also being run for the benefit of

students of the Samaj. He, therefore, prays that the civil second

appeal be allowed, the judgment and decree dated 22.05.2019 be

quashed and set aside and the judgment and decree dated

27.02.2013 passed by the learned trial Court be restored.

Heard. Considered.

[2023/RJJP/002545] (3 of 6) [CSA-353/2019]

While deciding the Issues No.2 & 2A pertaining to reasonable

and bona fide necessity of the subject premises by the plaintiff

and it is not coming to an end on account of acquisition of an

alternative accommodation by it, in favour of the plaintiff, the

learned trial Court has refused to grant the decree of eviction

deciding the Issues No.3 & 4 in favour of the defendant which

pertained to comparative hardship and partial eviction. The issue

No.3 was decided against the plaintiff on the premise that since

the defendant was running a school in the subject premises for

last about 10 years, not only future of the students would be

jeopardized; but, about 8-10 Teachers and Class-IV employees will

also face financial hardship as they would be rendered

unemployed. It has also been held that from the rental income

from the shops situated in the premises and with 4-5 lac capital

investment, requisite accommodation for hostel of the students

could be increased. This finding of the learned trial Court is in

contradiction with the findings recorded vide issues No.2 & 2A

wherein, it was held that the tenant could not dictate the landlord

to satisfy his requirement from a particular premises or in a

particular manner. Even otherwise also, it is trite law that the

landlord is the best judge of his need and he cannot be dictated

either by the tenant or by the Court to satisfy his requirement in a

particular fashion. In the considered opinion of this court, these

findings were not sustainable in the eye of law and the learned

Appellate Court did not err in reversing these findings vide its

judgment and decree dated 22.05.2019.

Further, the learned Appellate Court was perfectly justified in

deciding the issue of comparative hardship in favour of the plaintiff

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appreciating the testimony of S/Shri Atul Mani Sharma (DW-1)

and Gopal Krishan Sharma (DW-2) who have categorically

admitted in their cross-examination that they did not make any

attempt to find out an alternative accommodation. It is a well

settled legal principle that if the tenant makes no endeavor to

search for alternative accommodation, the issue of comparative

hardship cannot be decided in his favour.

Their Lordships have in case of Shamshad Ahmad & Ors.

versus Tilak Raj Bajaj (Deceased) through Lrs. & Ors.:

(2008) 9 SCC 1, held as under:

"50. Regarding comparative hardship, nothing has been stated by the tenant as to whether any attempt has been made by him to get alternative accommodation and he failed to get such accommodation. In the circumstances, in our opinion, the appellate authority was right in observing that there was no evidence to show that no shop was available to the tenant. It is quite possible, as noted by the appellate authority, that the tenant might have to pay more rent. But that would not preclude the landlords from getting possession of the suit- shop once they had proved genuine need of the property."

A Co-ordinate Bench of this Court has, in the case of Sarda

Devi & Ors. versus Bhagwati Prasad Dalmion & Ors.:

MANU/RH/1390/2022, held as under:

"23. It is settled proposition of law that necessity need not be proved as a dire necessity. Hon'ble Supreme Court in Mohd. Ayub Vs. Mukesh Chand

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[MANU/SC/0002/2012: (2012) 2 SCC 155] has discussed the concept of bona fide requirement of plaintiff with comparative hardship between the landlord and tenant. It has been held that landlord's requirement need not be a dire necessity. It was also held in the said judgment that factum of affluence of landlord is irrelevant, if landlord has bona fide need of the suit premises. The Supreme Court observed that affluence of landlord cannot be a basis of determine the issues of hardship. Otherwise if this is treated a correct approach, then affluent person can never get possession of his premises, even if he proves his bona fide requirement. The Supreme Court also observed that when the tenant did not make any genuine effort to find out any alternative accommodation, even during pendency of litigation, the tenant cannot claim hardship in future.

24. The proposition of law and criteria to adjudge the bona fide necessity and hardship, as observed by the Supreme Court in case of Mohd. Ayub (supra) has been endorsed in subsequent judgment in case of Krishna Kumar Rastogi Vs. Sumitra Devi [MANU/SC/0719/2014 : (2014) 9 SCC 309]."

So far as Issue No.4 pertaining to partial eviction is

concerned, it is a case of both the parties that the partial eviction

would not satisfy either's need. In view thereof, the learned

Appellate Court has rightly passed the decree of eviction in favour

of the plaintiff on the basis of its reasonable and bona fide

necessity for the suit premises, a finding recorded by the learned

trail Court which remained unchallenged by the defendant-tenant.

[2023/RJJP/002545] (6 of 6) [CSA-353/2019]

This Court finds no substantial question of law involved in the

second appeal which is dismissed accordingly.

(MAHENDAR KUMAR GOYAL),J

Manish/70

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