Achaldas Hemraj vs Cheetarmal

Nisha Gupta, J.—This Civil First Appeal under Section 100 CPC has been filed on behalf of the defendant-appellant against the judgment & decree dated 12/03/2014 passed by the Court of Additional and Sessions Judge No. 2, Jaipur Metropolitan City, Jaipur whereby, the suit for eviction has been decreed in favour of the plaintiff-respondent and counter claim of the defendant-appellant has also been dismissed.

The short facts relevant for consideration of this appeal are that plaintiff filed a suit for eviction and fixation of standard rent on the ground that he is owner of Plot No. D-1 in Chandpole Anaj Mandi on which two floors have been constructed and in ground floor, there are two shops, one shop is West facing and another shop just behind it is North facing. Both the shops have been rented to the defendant-appellant In February 1979 on the rent of Rs. 621/- per month. Apart from the ground of default in payment of rent and subletting, plaintiff has pleaded the bonafide and personal necessity of his sons Kamal, Paras and Vinod. It has been stated that plaintiff-respondent has five sons. Vinod is physically challenged. Vinod, Kamal and Paras all the three want to start transport business in the disputed shops. Kamal and Paras are working in the name of Shivam Golden Transport Company on the chabutra of the suit premises but heavy goods could not be booked and could not be taken on upper floor of the aforesaid suit premises. Vinod is physically handicapped. He want to open STD/PCO in the shop and he would also help his brothers in the transport business by carrying table work and plaintiff has no other premises except these two shops to run the business of his sons. Two other brothers are running a Kirana shop at village Bichi. It has been further stated that the premises can easily fetch a rent of Rs. 12,000/- per month. Contention of the defendant-appellant was that Kamal and Paras are working in the name of Shivam Golden Transport Company at Jalupura. Vinod is physically handicapped. He could not do any work. Few months back, plaintiffs have opened office of M/s. Padmavati Broker Agency at the mezzanine floor of the building. Vinod lives in village and he is doing his business of mobile phone in Pratap Nagar hence, he has no necessity for the premises. Hardship will be caused to the defendant-appellant if he has to vacate the rented premises and partial eviction is possible in the matter and if one shop be got vacated, the need of the plaintiff would be satisfied. Court below has decreed the suit on the ground of reasonable bonafide necessity. The issue of comparative hardship and partial eviction have also been decided in favour of the plaintiff-respondent and rent has been fixed at Rs. 4,000/- per month. Counter claim has also been submitted by the defendant-appellant that electricity meter installed in the premises is in possession of the defendant-appellant and plaintiff-respondent has to install a sub-meter at upper floor and he has to pay the electricity charges, for the electricity he has consumed but he has not paid any money. Hence, the counter claim has been submitted, which has been rejected by the court below.

The court below has decreed the suit hence, this appeal.

Contention of the appellant is that the court below has not considered the rival contentions correctly. Kamal and Paras are working in Jalupura and they have also started business in the name of M/s. Padmavati Broker Agency at the mezzanine floor of the same building. Vinod is also working at Pratap Nagar in the name of Neha Telecom hence, there is no bonafide need of any of the sons of the plaintiff. Apart from it, partial eviction from one shop would be sufficient to fulfill the need if any. It has also been submitted that initially the rent was much less and fixing interim rent @ Rs. 4000/- per month is on much higher side. Appellant is entitled for electricity consumption for Rs. 6142/- and sub meter has to be installed in the upper floor. Per contra, the contention of the plaintiff-respondent is that he has proved reasonable and bonafide necessity of his sons. Kamal and Paras were earlier working in Jalupura but premise has been got vacated by the landlord. They have also started business in the name of M/s. Padmavati Broker Agency in the same building but it has been closed and now they have no premises for his business of Shivam Golden Transport Company and Vinod has also started his mobile business in Pratap Nagar for the time being. Partial eviction would not fulfill his needs as three persons are in need of the premises and the shops are needed for storing and booking of the goods and also for running a STD/PCO shop. Under the new Rent Control Act, an application for fixation of standard rent has been submitted and rent of Rs. 5520/- per month has been fixed vide order dated 05/09/2013 hence, all objections as regards to the enhancement of rent are of no consequence. The plaintiff-respondent is not under obligation to pay any money for electricity charges and suit has rightly been decreed.

Heard learned counsel for the parties, perused the impugned judgment as well as the original record of the case.

The reasonable and bonafide necessity arose for Kamal and Paras and it has been stated by Cheetarmal (PW1) that Paras and Kamal needs the impugned premises to start their transport business. It has also been stated that they are working in the name of Shivam Golden Transport Company. Earlier they were working at Jalupura but they have to vacate the property as landlord was pressing hard and defendant has also admitted in his cross-examination that plaintiff was working at Jalupura but now it has been closed but when it has been closed is not in his knowledge and for M/s. Padmavati Broker Agency also, it has been admitted that this business had run only for 1-1 1/2 years. It has also been admitted that loading and unloading work could not be done at first floor and for business of transport company, only ground floor premises is needed. Defendant has also admitted in his cross-examination that plaintiff knows the business of transport as they were working in the name of Shivam Golden Transport Company. Defendant has also admitted in his cross-examination that Vinod, Kamal and Paras are un-employed at present. Hence, admission of the defendant itself proves the case of the plaintiff. Apart from the admission, plaintiff-respondent has submitted ample evidence to show that there is bonafide need of the impugned premises for running the transport business for Kamal and Paras, who are at present working from the chabutra of the disputed premises and Vinod is working from Pratap Nagar in a room as no other property is available to him. Availability of upper floor is of no assistance in the matter as looking to the nature of business that plaintiff want to run business of transport, which could not be done from upper floors. Hence, the court below has rightly held that plaintiff-respondent has bonafide and reasonable necessity of the premises for his three sons Kamal and Paras to start the transport business and also opening of the STD/PCO shop for Vinod, who is differently abled.

It has been stated that Vinod is residing in village but contrary to this, defendant Hemraj himself has stated that Vinod is working in Pratap Nagar in the name of Neha Mobiles. Hence, contention itself terminates and court below has rightly held that premises is reasonably and bonafidely needed by the plaintiff for the business of his three sons namely; Kamal, Paras and Vinod.

The court below has also considered the issue of comparative hardship. It has categorically held that plaintiff-respondent is not having any other premises for his sons, whereas the defendant-appellant is having another shop in Chandpole Anaj Mandi in 2nd Floor D-58 and his sons are having the shops in the vicinity. Kamal Kumar (PW4) has categorically stated so and it has not been denied by the defendant-appellant. While the plaintiff-respondent is in need of the property to start the business for his three sons, whereas defendant-appellant is having another shop for the business and apart from it, Hemraj, defendant has categorically stated in his cross-examination that now he has no turn over in his business. He is not paying the income tax even, assessment of the Sales-tax and VAT-tax has not been submitted, which show that defendant-appellant is not running any business in the disputed premises, which also goes in favour of the plaintiff-respondent that no hardship would be caused to the defendant-appellant in getting the suit premises vacated.

Much stress has been put on the partial eviction of the property and the contention of the appellant is that there are two shops and by vacating only one shop, the need of the plaintiff-respondent would be satisfied. It is true that two shops have been let out to the defendant-appellant but need of three persons have been pleaded and established, which shows that Paras and Kamal want to start transport business in which goods have to be loaded and unloaded and office is also needed for the same. Need of the godown is also inescapable in the business of transport. Apart from it, Vinod also want to start a business of STD/PCO and now for mobiles. Hence, by partial eviction, need of the plaintiff could not be satisfied and court below has rightly held so.

As regard to rate of rent, standard rent of the premises has been fixed, this issue remains not res integra as court below has only assessed Rs. 4,000/- per month as rent, whereas standard for the premises has been fixed is Rs. 5520/-. Hence, there is no force in the argument as regards to rate of rent.

Further, it has been submitted that defendant-appellant is entitled for electricity charges but defendant has remained unable to prove that plaintiff was under obligation to pay any electricity charges. It has been submitted that plaintiff has admitted the fact that he is not paying the electricity charges. Be that as it may be the case, but question is whether appellant is paying the charges for the electricity, which has been used by the plaintiff-respondent and for the same, no evidence has been submitted. Even no electricity bill has been submitted to testify the contention that what were the electricity charges since inception of tenancy. A vague contention has been raised that from 5-6 years, plaintiff is not paying 50% of the electricity charges but whether earlier money has been paid has also not been submitted. Hence, the court below after considering the rival contentions has decreed the suit. There is no perversity or infirmity in the findings of the court below. There is no ground to interfere with the reasoning and findings of the court below.

The appeal is thus dismissed being devoid of any merit. The record be sent back to the court below forthwith.