Bansidhar vs Nemichand

P.R. Sharma, J.—This is a plaintiff''s second appeal whose suit for ejectment was dismissed by the lower appellate Court.

The facts of the case lie within a narrow compass: The defendant is occupying a shop belonging to the plaintiff as his tenant on a monthly rent of Rs. 2-8-0. The plaintiff served a notice on the defendant terminating his tenancy and thereafter sued him for ejectment and arrears of rent. The plaintiff alleged in the plaint that he genuinely required the shop for his own business and that he had no other shop in the city of Lashkar suit able for that purpose. The defendant denied that the plaintiff genuinely required the shop for his own business. According to him the. plaintiff was doing his business in jewellery at the shop of one Chhotelal Chimanlal.

The trial Court found that the plaintiff had no other accommodation in the city of Lashkar and that the plaintiff genuinely requires the shop for his own business. It, therefore, decreed the plaintiff''s suit. On appeal the learned Additional District Judge Gwalior held that the plaintiff had an alternative accommodation in which he could carry on his business. He observed that the plaintiff had admittedly been dealing in jewellery since the last 20 years or so at his own house. The learned Addl. District Judge, therefore, held that there was an alternative accommodation for the plaintiff in which he could do his business and further that his need was not genuine inasmuchas he had on his own admission been carrying on his business for a number of years at his place of residence.

I have heard the learned counsel for the appellant at some length. His contention is that an alternative accommodation within the meaning of S. 4 clause (h) of the Accommodation Control Act must be accommodation of the same kind as is required by the plaintiff i.e. the accommodation must be non-residential accommodation in the present case. The learned counsel contended that the lower appellate court erred in holding that the plaintiff''s residential house could be treated as an alternative accommodation within the meaning of S.4 Clause (h) of the Act prima facie the contention of tine learned counsel appears to be well-founded. But what has really happened is that the learned appellate Judge has mixed up the question as to the genuineness of the requirement of the plaintiff with that of the availability of such an alternative accommodation as would disentitle him to relief under S. 4 (h) of the Act. The plaintiff did not state in his plaint that he was carrying on his business had so much expanded as would necessitate a shop. The defendant on the other hand pleaded vaguely that the plaintiff carried on his business at some one else''s shop. The cross-examination of the plaintiff was however, allowed to proceed on lines of which the pleadings contained no indication. The result has been that the judgment appealed from is based on grounds which were not specifically raised in the pleadings.

The learned Addl. District Judge was, as already observed by me above, not clear in his mind about the fact that the alternative accommodation in clauses (g) & (h) of S. 4 of the Act must be of the [same kind as the defendant is called upon to vacate. Even if the plaintiff has for a length of time been using a residential accommodation both for purposes of his business and residence, it cannot unless a portion of it is used exclusively for running the business, be deemed to be an alternative accommodation within the meaning of clause (h) of S. 4 of the Act.

This appeal must, therefore, be allowed. The Judgement and decree passed by the lower appellate Court are hereby set aside and the case is remanded to the trial Court with a direction that the plaintiff shall amend his plaint setting out the circumstances due to which he finds it necessary to have a shop for his business which he would so far carry on at his place of residence. The defendant can in reply state facts which go to show that the requirement of the plaintiff'' is not genuine. It appears to me to be clear that neither of the Courts below has concentrated its mind on the question of genuine requirement which the plaintiff is bound in law to establish. It is not enough for him to say that he requires the accommodation. He must show that he genuinely requires it. It is not for the defendant to prove the negative until the plaintiff has pleaded in his plaint and proved facts which show his need to be genuine. Where this is not done the defendant is under no obligation to prove circumstances to show that the plaintiff''s need is not genuine. The plaintiff would in such a case fail because of failure on his part to establish a fact the burden of proving which is cast upon him by the law. It is only to be expected that the trial Court will keep these observations in mind while trying the suit afresh. There shall be no order as to costs incurred so far.