Leela Dhar v. Shiv Kumar

HON'BLE MR. PRAKASH TATIA, J. Mr. R.R. Nagori for the appellant. Mr. S.L. Jain for the respondent(caveator). ... BY THE COURT Heard learned counsel for the parties. The appellant is aggrieved against the judgment and decree of the trial court dated 4.8.2004 by which the plaintiff-respondent's suit for eviction against the appellant-tenant was decreed on the ground of personal bonafide necessity of the plaintiff as well as on the ground of material alteration. The appeal against the judgment and decree of the trial court was dismissed by the first appellate court vide judgment and decree dated 24.10.2007. Hence this second appeal. According to the learned counsel for the appellant, the plaintiff himself has one more shop adjoining the shop in dispute and he did not 2 disclose that fact any where and he sought eviction of the appellant- tenant on the ground of personal bonafide necessity. It is also submitted that the appellant's premises in question is measuring 12' x 10'.

The respondent nowhere pleaded that he will use his other shop by including that shop in the shop in dispute and will reconstruct the shop so as to make it as shop of 20' obviously in the width. The courts below proceeded under assumption that the plaintiff's case is that he will include other shop in the shop in dispute and will make it 20' wide shop. The learned counsel for the appellant vehemently submitted that it is highly improbable that a shop of 20' width or in length can be required for running a shop of motor pump-sets rewinding business. It is also submitted that the two courts below further committed error of law in deciding the issue of material alteration against the appellant- defendant. It is also submitted that the plaintiff demolished the upper portion of his house under which shop in dispute is situated and the appellant-defendant filed suit for inunction and in consequence thereof only, the plaintiff has filed the suit for eviction by creating ground of his need which was not in existence.

I considered the submissions of the learned counsel for the appellant and perused the reasons given by the two courts below. It is not in dispute that the plaintiff in the plaint specifically pleaded that his need will be of 20' shop and admittedly, the width of the shop in dispute is 12' then it can certainly be presumed that the 3 plaintiff will use some space which is in his occupation. Further the defendant has not very specifically raised any specific objection about how the plaintiff is seeking possession of 12' shop when plaintiff's need can be satisfied by 20' shop and defendant can deliver 12' shop and if the entire shop is handed over to the plaintiff then the plaintiff cannot run his business because of lesser measurement. Be it as it may be, all the evidence and facts with respect to the question of facts have been considered by the two courts below with respect to the need of the plaintiff and I do not find that any substantial question of law is involved in this second appeal.

The defendant's other contention about not making any material alteration is also of challenge to the question of fact recorded by the two courts below. It appears from the reasons given by the two courts below while deciding issue no.3 that the two courts below have considered the evidence of both the parties and I do not find that there is any misreading of allegations or misreading of evidence or consideration of evidence. In view of the above, the appeal deserves to be dismissed. However, the learned counsel for the appellant prayed that some time may be granted to the appellant for vacating the suit premises. I considered the prayer of learned counsel for the appellant and looking to the facts of the case, this Court is of the view that the appellant be granted time up to 31.12.2008 to vacate the suit premises. 4 Therefore, it is ordered that in case, the appellant furnishes a written undertaking before the trial court within a period of two months from today that he shall hand over the vacant possession to the landlord by or before 31.12.2008 and shall not part with the possession or sublet the suit premises during this period and shall pay all the arrears of rent and decretal amount, if due, and shall also pay the rent up to