Pandit Harishanker Shukla Smriti Mahavidyalaya v. M/s Krishna Construction Co

fFIRST APPEAL UNDER SECTION 960FCODE_QF CIVILPROCEDURE) (Sinsle Bench: Hon'ble Mr. N.K. Asarwal, J.) Present : Shri Pramod Kumar Verma, Sr. Advocate with Shri PR Patankar, Advocate for fhe appellant. Shri, Srikumar Agrawal, Sr. Advocate with Shri HS Patel, Advocate for respondent. JUDGMENT (Delivered on _J_/01/2013)

1. This is defendant's/tenant's First Appeal under Section 96 of CPC against the eviction decree dated 08.03.2004, passed by the yillfh Addl. District Judge, Raipur, in Civil Suit No. 5-A/2003. ••<•

2. Facts in brief, necessary for disposal of this appeal are that: plaintiff finn is a registered partnership firm having 4 partners namely; Shri S.P. Agrawal, Smt. Krishna Kumari Agrawal, Shri -tf *• IA'•K." 'sS .Slf I <!i \ Anil Kumar Agrawal and Shri Salil Kumar Agrawal. Plaintiff firm consfaructed one three storied buildmg namely Krishaa Complex. The suit premise is constmcted over 2285 sq.ft. in its first floor. Plamtiff filed a suit for eviction and arrears of rent against the defendaat. According to plaintiff, the same was given to the tenant for non residential purposes at a monthly rent of Rs. 6284/-. The suit premises is required bonafide by the plaintiff for the purpose of starring their computer business and they reasonably suitable residential accommodation of their own in their occupation in the city of Raipur. By filing written statement, the appellant/tenant denied the plaintiffs claim. On the basis of pleadings of the parties, the trial court framed followmg issues- m^T 4'uTl^d fTTift^R ^WTT t ? "WT

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6. The trial court, havmg found, the suit premises is required bonafide by the plaintiff for fhe purpose of their computer business, decreed the suit. Hence fhis appeal.

7. Shri Pramod Kumar Verma, leamed senior counsel appearing for the appellant assails fhe eviction decree on two grounds (i) as per the evidence, the suit premises is required by the plaintiff for the purpose of starting computer business of .one of the partner Salil Agrawal, whereas, the'owner/landlord ofthe suit premises is a partnership firm, therefore, the suit premises let out by the firm cannot be got vacated for the need ofone ofthe individual partaer of the firm; and (ii) plamtiffs need is not bonafide, masmuch as, alfhough they were having several reasoaably suitable altemative accommodation to start their business, but, fhe saffie have been sold or given on rent prior to and during the pendency of suit and are still having reasonably suitable altemative non residential accommodation to start their computer busmess. It was further contended by Shri Verma :si£ Tc"'-,^/ l'i'» ^^" ^, te;^' \ that the court below has also passed the eviction decree in contravention of Section 12(6) of the Accommodation Control Act (for short, 'the Act').

8. On the other hand, Shri Srikumar Agrawal, leamed senior counsel appearing. for the respoadent/laadlord, would submit: the suit premises is required bonafide by the plaintiff for startmg theirown business and not for business ofan mdividual partaer. The above fact.has been established by the plaintiffby adducing evidence m this regard. Although some shops of small dimensions were sold by the plaintiff during pendency of suit and plamtiff has also sold some residential portion situated in the first floor, but, the same could not be termed as reasonably suitable noa residential accommodation to negative the plamtiff's need, and thus, the court below has not committed any error m passing the decree impugned.

9. I have heard leamed counsel appearing for the parties and pemsed the judgment and decree impugned including record of the trial court.

10. As per plaint para 7, the suit premises is requu-ed bonafide by the plaintiff for starting business of the firm and aot of one of fheir individual partner. There is no averment in the written statement showmg need is not ofthe firm but is ofan individual partner. -

11. S.P. Agrawal, one ofthe partner ofthe firm has deposed in his statement para 7 that in the suit premises, his son Salil Agrawal '»». •'-'"^s ? \. ^,^^ •"'^t.M-'"' (\yi will do computer business and alongwith his other son namely Anil Kumar, he will assist him in running the computer business.

12. Salil Agrawal (PW-2) has also stated in his statement para 3 that he wants to start computer busmess in the suit premises on behalf ofplaintiff firm. -13. Anil Agrawal (PW-3) has also deposed m his statement para 6 that the suit premises is.requred bonafide by the plamtiff for their computer busmess in which mainly his brother Salil Agrawal will do the said busmess and he and his father will assist hun.

14. From the above statements, it is crystal clear, m substance, the need is of fhe plaintiff firm to start computer business and not ofone ofthe partner namely Salil Agrawal. As Salil Agrawal is a Computer Engineer whereas two other partners are Civil Engineers, therefore, they wanted to start business of computer mainly with the help of Salil Agrawal, but, the business would be ofthe firm and not oftheir individual partner Salil Agrawal.

15. The appellant examined Raghav Ji Shukla (DW-1), who has nowhere stated that only Salil Agrawal will start the business and not the firm.

16. TheSupremeCourtmthematterofD.N.SanghaviandSonsv. Ambalal Tribhuwan Das i.e. -a case where the iadividual landlord filed a suit against the tenant for the need of his X'AIR 1974 SC 1026 c^ ^ partaership busmess, while mterpreting the word "his business" occurriag in Section 12(l)(f) of the Act, has laid down that, in a suit for ejectment on the ground of need for continuing "his business" it is necessary for the landlord to prove that the accommodation is needed directly and substantially for his occupation for the piupose of continumg or starting his business, and has held, on facts that merely because the laadlord required the accommodation for his partnership busmess did not fulfill fhe conditions of Section 12(l)(f).

17. Here in the instant case, the facts are entirely different. The plaintiffhas established the need ofthe suit premises let out by them to the appellanVtenant for the need of plaintiff fmn and aot for the need of any individual partner. In a partnership business, the partners may choose to start business looking to the skill ofone ofthe partner. It doesn't mean that-the firm did not require suit premises for the business of firm as one of the partner would be more active in the business, and the need of business would be need of individual and not of the fimi, and the above contention raised by Shri Venna is devoid of merit, mpre so when this ground has not been raised by the appellant in the memo ofappeal.

18. Coming to the next question raised by the appellant counsel, the shops sold by the plaintiff during the pendency of Suit, are situated in the groimd floor and are also of lesser dimension, inasmuch as, the suit premises is constmcted over 2285 Sq. ft. ./[' ;-T^»., ^' •. J;' u: & Eh v \ whereas, as per statement para 12 of Suraj Prakash Agrawal (PW-1), entire area of 11 shops is about 2200-2300 sq.ft., and therefore, the above shops cannot be termed as reasonably suitable altemative accommodation to satisfy the plaintiffs need. The premises situated in the first floor of the building sold by the plaintiff were residential premises of lesser dimension and cannot be termed as altemative accommodation •i. for non residential need to start computer business. It is a matter of common knowledge that computer business needs a preemies constmcted over a large area m the shape of Hall. The appellant/defendant could not prove any such area is available to the plamtiff to satisfy theu' need. Qn the contrary, Raghav Ji Shuila (DW-1) has deposed in para 15 that : ?l? cfM ^tcp t f^), c^sITT <t"^cRI'l cCTTft ^ T^ff.Tft. 3:reraT?r T?cr ari^fcT anjcncT fcb'il^ll^l ''1FT cpt <t)*^d< &]<c|'MI'4 c^ f^P? ^lcft ?|5^r-'^ ^ TIFT f^ ^ 1 'CRg :'gTTTft ^IuT^t t ?ITI^ 'qRT uPT? cPT t S~aRl<) 'i^Toft ^T c|r? ^Tcf5^ f 3^[sTET ^t^Rf'ifttf^^TurErcIcIi rTlt ^Tcft ^t cf^l Therefore, the above point raised by the appellant regarding availability of reasonably suitable non residential accommodation to the plaintiffis also sans-substance.

19. Ne'<rertheless, the trial court has certainly committed some error in not granting compensation to the appellant. The suit premises was let out to the appellarit by the respondent in the year 1996 and the mstant suit was filed m the year 1998, therefore, the trial court should have allowed compensation to ""•A. •^.3^:?~>, ^: ^^.^^^ liil-1.. ;^, 'i&>^^!>' ^, ^r :^A.^ the appellant m terms of Section 12(6)(b)(ii) of the Act i.e. equal to the annual agreed rent i.e. Rs. 77,784/- (6482 X 12).

20. For the reasons mentioned hereinabove, although I do not fmd any merit m the appeal, however, the decree is modified to the extent, fhe respondent/landlord shall deposit Rs. 77,784/- as compensation in terms of Section 12(6)(b)(ii) ofthe Act before the trial court.

21. The appellaat/tenant is granted two months time to vacant possession of the suit premises to the respondent. No order as to costs.

22. Decree be drawn accordmgly. Sahu SdA N.K.Agrawal Judge