Dalbir Kumar Soni vs Sham Lal

This Civil Second Appeal has been preferred by the plaintifflandlord against the judgment and decree dated Sept. 21, 1981 passed by the

learned Additional District Judge, Jammu whereby he has allowed the appeal of the respondentdefendanttenant against the judgment and decree

dated Feb. 20, 1981 passed by the learned Sub Judge (Chief Judicial Magistrate) Jammu whereby he had decreed the suit of the plaintifflandlord

and ordered the eviction of the defendanttenant.

The demise premises is a shop situated at Gumat Bazar, at Jammu. The shop in question is owned under the ownership of the appellant who

admittedly is the landlord of the respondent. The respondent had taken to be shop on lease on a monthly rent of Rs. 40/ from 1st. March 1960

and a rent note was executed by him in favour of the appellant wherein it was agreed that the rent would be paid on each month and shop would

be vacated on ore month's notice. The appellant's contention is that the shop was reasonably required for him for setting up the business for his

unemployed son namely Suresh Kumar who had undergone practical training in the repairworks of electric goods and because he has no other

business or source of income, he wanted to gainfully employee his son Suresh Kumar and it was for his benefit that the appellant wanted the

possession of the shop to be restored to him after ordering the eviction of the respondent from the demise premises. Pressed by this requirement,

the appellant served a notice on the respondent terminating the tenancy of the respondent with effect from Aug. 31, 1973 and this notice was

served upon the respondent on July 19, 1973 because the respondent, despite the service of notice failed to vacate the premises despite the fact

that in the said notice, his tenancy had been terminated, the appellant was restrained to file the suit praying for the decree of eviction against the

respondent. The only ground on which the suit was instituted was, therefore, the personal requirement of the appellant for the benefit of his son

Suresh Kumar, who was according to the appellant was unemployed and required to be gainfully employed so as to be economically independent.

In the written statement filed by the respondent in the trial court, The tenancy was admitted, but the rate of rent was denied, ft was denied that

the rate of rent was Rs. 40/ per month, but it was submitted that factiually speaking the respondent was paying Rs. one hundred per month to the

appellant who was recording only receipt of Rs. forty per month. The personal necessity and bonafide requirement of the appellant was disputed

by the respondent. It was specifically alleged that the shop was not required by the appellant for the benefit of his son Suresh Kumar on the ground

that the son was running a 'Hotel' under the name of ""Suresh Hotel"" and was also receiving education in the Science College, Jammu. Respondent

in the written statement also submitted that it had become an hobby for the appellant to concept and give false claims regarding his requirement

relating to the shop under occupation of his tenant and by way of a notice in support of this allegation, it was submitted that one shop adjacent to

the demise premises was let cut by the appellant to one Banarsi Dass to whom a notice of ejectment was served on the plea that the shop was

required for the personal use and occupation of the appellant, Because the said Banarsi Dass, did not desire to enter into any litigation and also

because the said Banarsi Dass himself owned some shops, he vacated the shop voluntarily without the parties having entered into any litigation. It

was contended that after the shop was vacated by the said Banarsi Dass, the appellant relet it out to one Girdhari Lal and ones again, after a little

while notice of ejectment was served upon the new tenant Girdhari Lal as well.

This notice was followed by filing of the suit and obtaining the decree of ejectment against Girdhari Lal in 1963 whereby Girdhnri Lal was obliged

to vacate the shop in the year, 1978. It was also submitted in the written statement that the appellant owns a bus in the name of his wife and also

owns some more property in Jammu City and has some other business and, therefore he does not require the demised premises for his personal

use and occupation and in any case 'he requirement of the appellant was neither bonafide nor reasonable and that the suit had been filed only to

harass the respondent and to obtain more rent and put pressure on him to increase the rent.

Based on the pleadings of the parties, the following five issues were framed by the trial court vide its order dated December 10, 1973:

Is the suit shop reasonably required by the plaintiff for his personal use and his son? O. P. P.

Taking into consideration the comparative advantage and disadvantage of the parties is the need of the plaintiff preferential to that of the

defendant? O P. P.

Is the notice for ejectment not in accordance with law? O. P. D.

Is the value of the suit for purposes of court fee and jurisdiction incorrect, if so, what is correct valuation for both? O. P. P.

Narain Singh, Devi Saran, Lakhmi Chand, Charnan Lal and son Suresh Kumar apart from the plaintiff himself were examined as the witnesses in

the trial for the plaintiff and Girdhari Lal, Barita Ram, Om Parkash, Banarsi Dass, Bodh Raj, Baldev Raj, Tarlok Chand, Chet Ram, Dheru Ram,

Ram Krishan, Shori Lal, Manohar Singh, Nakul Dev, Roop Lal, Om Parkash son of Anant Ram, Ashok Kumar, Manohar Lal, Durga Dass,

Subash Chander, Sat Paul and Mulkh Raj were examined as witnesses on behalf of defendantrespondent.

The findings of all the issues were returned by the trial court in favour of the appellant and the appellant's suit for ejectment of the respondent

was decreed with costs vide the judgment and decree of the trial court dated Feb. 20, 1981. It appears that the trial court decreed the suit on the

basis of claim of the appellant that his son Suresh Kumar had completed studies and wanted to settle down in the business to supplement and

augment the meager income of the family from the Hotel, especially after he had acquired necessary know how in the sale of electric goods and,

therefore, intended to sell electric goods in the shop in question. The reasonable and bonafide requirement of the appellant was accordingly found

existing in his favour and it was also found to be by the trial court that the scale of comparative advantage existed in favour of the appellant,

because, according to the trial court, comparatively eviction pf the respondent from the shop would be more advantageous to. The Appellant and

would cause a very little inconvenience to the respondenttenant.

Because of the aforesaid decree of eviction against him, respondent took out Civil 1st. Appeal against the aforesaid decree. The Civil 1st.

appeal was filed' on Feb. 25, 1981 and was disposed of on Sept. 21, 1981. By his aforesaid judgment and decree, the Lower Appellate' Court of

Additional District Judge, Jammu allowed the appeal of the respondenttenant and consequentially setaside the impugned decree of the 'trial court of

SubJudge (Chief Judicial Magistrate) Jammu and thus dismissed the suit of the appellantplaintifflandlord, By reexamining the entire material on the

record of the trial court's file and by reappreciation of the evidence led during the trial by the patties, the lower appellate court coma to the

conclusion that the appellantlandlord had failed to establish his bonafide requirement and that in any case the Requirement of the respondenttenant

was comparatively more than that of the appellantlandlord. On the basis of these findings the appeal was allowed. It is this judgment of the lower

appellate court which has been impugned and is under challenge in the present appeal in this court.

During the course of lengthy, detailed and exhaustive arguments, Mr. P. L. Handoo learned counsel appearing for the appellant took great pains

to take me through the two judgments of the courts below in minute detail and also carried me through the Statements of various witnesses who

had appeared for the parties 'during the trial Mr. Handoo also referred to other material on record of the file of the trial court. His submission was

that the judgment rendered by the trial court was in keeping with the established parameters in existence regarding the eviction of House's and

Shops under the provisions of section 11 of the J&K Houses and Shops Rent Control Act, 1966 and that, because the appellant had established a

strong and foolproof case in his favour for securing a decree of eviction the trial court was justified in decreeing the suit of the appellant. Mr.

Handoo made detailed submissions in support of his plea that the appellant had comparatively proved with reference to the evidence and other

material that the son had ohtained training in the field of repairs of electrical goods, was an educated unemployed and, therefore, it was too

necessary and natural for the father to wish gainful employment of the son and, therefore, no one could dispute and challenge the projections of the

appellant regarding his reasonable and bonafide requirement of the shop. It was also submitted that comparative advantage also lays in favour of

the appellant because, even if evicted respondent could easily secure some shop somewhere and in fact respondent was liable to be eviction

because he had not bothered to place on record any efforts made by him as to whether the shops were available on rent or not. Mr. Handoo's

contention also was that even though the family had Hotel above the demised premises and that the Hotel was running but the income from the

Hotel was very meagre and the occupation of the shop by the son of the appellant would be a step in further supplementing and augumenting the

income of the appellant and his son.

The main thrust of the arguments was that whereas the appellant had meagre income and wanted to augment it through his son by starting a new

future venture in the shop, respondent was a rich person, all his four sons being suitably occupied and engaged in flourishing business and in any

case there being no difficulty in his being able to obtain another shop on lease. Controverting the submissions of Mr. Handoo, Mr. Kohli learned

Senior Advocate appearing for respondent raised a preliminary objection to the effect that no point of law was involved in this appeal and that this

court while exercising its jurisdiction in hearing a Civil Second Appeal was bound to go by the finding? of fact as recorded by the Lower Appellate

Court, even though these findings by the Lower Appellate Court had reversed the finding recorded by the trial court. Mr. Kohli's submission was

that in so far as the findings of fact are concerned, this court in Civil 2nd Appeal has no jurisdiction to disturb them nor had this court the

jurisdiction to reappreciate and reappraise the evidence with a view to come to a different conclusion regarding the findings of fact. According to

Mr. Kohli finality was attached to the finding recorded by the Lower Appellate Court on the factual aspect of the case.

Also controverting the submission of Mr. Handoo, Mr. Kohli submitted that the appellant, had failed to demonstrate in any manner his personal,

reasonable or bonafide requirement of the shop. The appellant did not require the shop either for himself or for his son and in any case, the

business of running the Hotel of about ten rooms in the busiest and most commercial locality of Jammu. Gumat Bazar was more than enough for the

appellant and his son. A person having the business of a Hotel at his command could not be permitted to even ask for the eviction of his tenant

from a shop only to further supplement and augment his income. His submission also was that even the question of supplementing and augmenting

the income was not available to appellant because it was totally different from the case set up by the appellant in the suit. Para 2 of the plaint was

repeatedly referred to and read by Mr. Kohli before me in which the appellant had not made any mention about the Hotel business or fact that his

son Suresh Kumar was in fact managing the affairs of the Hotel or the desire of tae appellant for starting a new venture in the shop in question.

According to Mr. Kohli the only case setup by the appellant in para 2 of the plaint, the only part of the plaint dealing with the subject of

requirement was that the son of the appellant was unemployed and it was for him and him alone that the shop was required, so that he could run his

business and become economically independent of his father. Mr. Kohli's further submission was that the appellant had failed by prove any other

source of income of the respondent or the fact, as alleged by the appellant, that the respondent himself or any of his sons had any other business or

shop anywhere else in the City or that some other shop could become available to the respondent in the event of his being evicted from the shop in

question. His argument was that the respondent had totally demolished the cate of the appellant neither required proved beyond any doubt that the

appellant neither required the shop for his personal use nor the requirement was reasonable nor bonafide.

On the other hand, it was proved by the respondent that he required the shop, because his family depended entirely for survival on the income

from the shop and that there was no other source to bring up the family nor had the respondent any other business to fall back upon in tile event of

his eviction from the shop nor was any shop available in and around the area in question.

I have heard the learned counsel for the parties at great length and perused the record.

In the case of P. B. Desai vs. C. M. Patel reported in AIR 1974 S.C. 1059, it has been held by their Lordships of the Supreme Court that

each party in a suit for ejectment of a house or house must adduce evidence to prove and disprove each other case. The Landlord must adduce

evidence before the court to show, his bonafide requirement and that other accommodation for him was not available and similarly the tenant also

must adduce all relevant evidence to prove that the personal and benafide requirement of the landlord was absent and nonexistent and that

hardship would be caused to him by the granting of a decree of ejectment. Their Lordships further held that it is after the evidence has been led by

parties that the court would appreciate the evidence in its totality to determine whether the sufferings of the tenant in case of a decree being passed

against him would be more than that of the landlord by its refusal and it is. only after sifting such evidence that the court must from its conclusion of

consideration of all the circumstances of the case as to whether greater hardship would be caused by passing decree than by refusing to pass it.

In the case of Mst. Bega Begum vs. Abdul Ahad Khan & Ors. reported in AIR 1979 S.C. 272, a case from J&K State and arising out the

suit filed in respect of the property at Srinagar, their Lordship of the Supreme Court had occasioned to interpret section 11(1)(b) of the J&K

Houses and Shops Rent Control Act, 1966. In this judgment the expressions ""desire"" and ""need"" have been given a meaningful explanation so as to

properly and effectively determine the concept of bonafide and reasonable requirement of the Landlord and the further concept of comparative

advantage and disadvantage between the landlord and tenant. It was held that the Act is a piece of social Legislation aimed at easing the problem

of accommodation, protecting the tenants from eviction inspired by profit haunting & motives and providing certain safeguards for the tenants and

saving them great expense, inconvenience and trouble. But the Act does not complete y overrule the interest of the landlord and under certain

conditions granted a clear right to the landlord to seek eviction on number of grounds mentioned in section 11. Thus, the Act appears to have

struck a just balance between the genuine need of the landlord on the one hand and great inconvenience and trouble of the tenant on the other, in

the light of this spirit beyond the legislative intent enacting the Act the Supreme Court thus held that if the landlordfirm found that its present

business had become dull and was not yielding sufficient income to himself and, therefore, it was necessary to occupy the house so as to run a hotel

business, it could not by any stretch of imagination be said that the landlord had merely a desire rather than a bonafide need for evicting the tenant.

If the landlord had proved that his necessity was both genuine and reasonable, that the premises which belonged to him were required for

augmenting his income as the income so far received by them was not sufficient for him to make the two ends meet, there could be no question of a

mere desire, but it was a case of real requirement or genuine need. In fact the irresistible inference which could be drawn from the aforesaid facts is

would always be that the landlord had a pressing necessity of occupying the premises for the purposes of conducting the business so as to

supplement his income and maintain himself properly. The court went on to observe as under:

Moreover, 5, 11(1)(h) of the Act uses the words 'reasonable requirement' which undoubtedly postulate that there must be an element of need as

opposed to a mere desire or wish. The distinction between desire and need should doubtlessly be kept in mind but not so as to make even the

genuine need as nothing but a desire the High Court has done in this case. It seems to us that the connotation of the term need or 'requirement

should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord

to get a decree for eviction. Such a course would defect the very purpose of the Act which affords the facility of eviction of the tenant to the

landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, Prevalent in other States in the

country. This court has considered the import of the word 'requirement' and pointed out that there should be an element of need.

At another place, in para 15A, their Lordships observed as under:

We are clearly of the opinion that in the instant case, the plaintiffs had proved that the requirement of the house for stating a hotel business was

both genuine and reasonable and even imperative because the scanty income of the plaintiffs was not sufficient to maintain them or to afford them a

decent or comfortable living.

In the case of Bhagwati Prasad vs. Chandramaul, reported in AIR 1966 S.C. page 735, a Bench of four Judges of the Supreme Court held

that there can be no doubt that if a party asks for the relief on a clear and specific ground and in the issues at the trial, no other ground is covered

either directly or by necessary implication, it would not be open to attempt to sustain the same claim on a ground which is entirely a new.

In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely now and which is inconsistent with the grounds

made by it in its pleadings. The court, however, further observed that in considering the application of this doctrine. It was necessary to bear in

mind the other principle that considerations of form cannot override the legitimate consideration of substance. If a plea is not specifically made and

yet it is covered by an issue by implication and the parties know that the said plea was involved, in the trial, then the mere fact that the plea was not

expressly taken in the pleadings would not necessarily disentitle a party from relying upon it. If it is satisfactorily proved by evidence. While

elaborating further on the issue, the court observed as under:

The general rule no doubt is that relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of

both parties to the suit are touched, though indirectly or even obscurely. In the issues and evidence has been laid about them, then the argument

that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the

Court has to consider in dealing with such an objection, is did the parties know that the matter in question was involved in trial and did they lay

evidenceabout it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead

evidence in respect of it that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party

did not lead evidence, would introduce considerations of prejudice and in doing justice to one party, the Court cannot do injustice to another.

The one instance is that one shop which is adjacent to the shop in dispute was let out by the plaintiff to one Banarasi Dass to whom a notice of

ejectment was served by the plaintiff on the plea that he required the shop for his personal necessity. The said Banarsi Dass who himself owned his

many shops did not desire to enter into litigation, vacated the shop voluntarily without there being a suit. The plaintiff had then letout the same shop

to one Girdhari Lal son of Gladu Dass and after a little while the plaintiff had again served a notice of ejectment on him in the year 1966 from the

said shop. And a decree for ejectment was obtained by the plaintiff against Girdhari Lal in the year 1968 by which Girdhari Lal had undertaken to

vacate the shop in the year 1978. This decree was obtained on the basis of a compromise and the ground given in the plaint was the personal

necessity. That personal necessity has become a metapher with the plaintiff.

The main thrust of the appellant's case all along had been that the appellant' required the shop for setting up his son Suresh Kumar in business

because the son was unemployed, had received training in repair of electrical goods and had no source of income and was thus a burden on him.

Even though the appellant did not mention anything about the Hotel being run and managed cither by himself or by his son Suresh Kumar,

respondent in written statement very clearly and without my doubt, in explicit and unambiguous terms stated that the son Suresh Kumar was

running the Hotel and was also receiving the education in the Science College. After the written statement was filed, the appellant know that the

fact about there being a business of the family and the allegations of the son being the beneficiary of this business was a relevant and material fact in

issue, having been duly raised by the defendantrespondent in the written statement and if one applies the principles of law laid down in the

judgment of the Supreme Court in the case of Bhagwati Prashad (supra), one cannot escape the responsibility of not leading evidence about this

particular fact and all the facts related thereto and yet claim that this was not a matter directly or substantially in issue between the parties. There is

no .doubt that from the stage of leading evidence, the parties knew that the matter in question duly involved in the suit was as to whether the son

Suresh Kumar was totally unemployed and had no business of his own or that he wanted to supplement and augment the income received from the

Hotel.

In my considered view and opinion, both the courts below have returned a positive and categorical finding of fact that ""Suresh Hotel"" was in

fact for the benefit of either Suresh Kumar exclusively or in any case jointly for Suresh Kumar and his father, the appellant. I am saying so only with

the purpose of holding that even if one tries to read the judgment of the courts below between the lines, one does find that anything even the

beneficiary of the Hotel business could either be the son exclusively or at worst the father and son jointly. The following from the judgment of the

trial court can be taken note of:

Now the question is whether the requirement of the plaintiff is reasonable. This depends upon the following lectors:

(1) Whether plaintiff's son is wholly engaged in the hotel and if so whether its income is such that the requirement of the plaintiff could be taken as

expansionist:

(2) Whether Suresh Kumar has any substantial interest in the hotel when its building admittedly belongs to the plaintiff as a manager of the family.

(3) Whether Suresh Kumar has obtained working know ledge in the business he wants to engage himself.

So far as the income of the hotel is concerned according to the plaintiff it is very meagre and he in this is supported by P. W. Lakhmi Chand

Malhotra who is his close relation. There is no rebuttal to this fact. It is nobody's case that the hotel has a flourishing business. Rather it is admitted

case of the parties that there are hardly 12/13 rooms out of which at least 2 or 3 are on permanent lease being used by a cloth merchant and a

KHOYAWala. Thus hardly 10 rooms are available for lodging. It is also the admitted case of the defendant that the room rent in the hotel does not

exceed 15 to 20 rupees.

Now can a young man of the age of Suresh be allowed to waste his life for maintaining the record of the hotel which has hardly 10/12 rooms and

that too for lodging only. Admittedly no catering is provided in this hotel perhaps it is not possible. When such is the case this hotel can only engage

a man for 2/3 hours in a day and not beyond and for this plaintiff who is still in his fifties is admittedly himself without a job as he could not get

possession of the shop for which he held a decree as it was held to be a nullity. It is nobody's case that plaintiff is not the owner of the hotel. How

could one imagine that a person of the age of plaintiff's son would remain idle and wait for the arrival of a customer to fill the vacancy in the hotel: a

job which can be easily entrusted to an employee on meagre monthly wages. So hotel business is not a full time employment for the plaintiff's son"".

After discussing the aforesaid factual aspects of the case, the trial court proceeds to declare as under:

Suresh Kumar has done well by engaging himself partly in the hotel business and this is an additional qualification as it shows the urge and zeal for

the enterprise ........

The lower Appellate Court has dismissed the appellant's suit for eviction only on the ground that income from hotel business was enough both

for appellant as well as his son Suresh Kumar and, therefore, the appellant had failed to establish and prove any responsible or bonafide

requirement.

Mr. Handoo repeatedly submitted before me during the course of his arguments that the judgment of the trial court on the question of the son

being the beneficiary of the Hotel was in favour of the appellant. I am in complete disagreement with the submissions of Mr. Handoo. Even though

the trial court took a low sided view of the entire controversy between the parties and fell in grave error in certifying the reasonable and bonafide

requirement of the appellant entitling him to get the decree of eviction against the respondent it none the less quite frankly returned a finding of fact

that there was something called as ""Suresh Hotel"" which had about ten rooms for lodging purposes and that the beneficiary of this business was

none other than Suresh Kumar, the son of the appellant for whose benefit the appellant had filed the suit of ejectment on the sole ground of his

being without any source of income and thus a burden on the appellant. It appears that the trial court was carried away by some hidden and

unexplained desire with a purpose to return a finding in favour of the appellant on the nonexistent ground of the appellant or his son supplementing

and amounting the income either individually or jointly of the family. There is no doubt whatsoever that in Mst. Bega Begum's case (supra) their

Lordships of the Supreme Court had laid down, as a principle of law that a landlord was entitled to seek eviction of a tenant on the basis of a

'desire' and 'need' to augment and supplement the meagre income so as to live more comfortably and with better resource and needs, there could

absolutely be no quatrel with that proposition of Law, as it is based on very sound and cogent reasoning. That proposition of law however, is not

applicable in the present case if one looks to the case set up by the appellant or at the pleadings or if one tries to sift through the entire evidence led

by the appellant, to find out as to whether appellant made any attempt to prove the case beyond all doubts regarding the augmenting and

supplementing of the income. I very minutely want through the evidence recorded during the trial and found that no serious attempt was made by

the applicant to indicate as to how must income was generated from the Hotel business and as to how much income in fact was needed either by

the appellant or by his son so as to be the beneficiary of the principles of augmenting the income. Because the appellant failed to discharge the onus

squarely lying upon him of proving the economics of the Hotel business, both the courts below took upon themselves the task of calculations based

on hypothetical premises, surmises and conjectures. Even though I do not very strongly approve of the approach adopted by the lower appellate

court in entering into the field of calculations in the absence of any concrete material before it I cannot help commenting that basically there was

nothing wrong in the principle followed by the lower appellate court in returning a finding that the income from the hotel was enough for the

appellant to maintain himself and his son Suresh Kumar. The admitted case of the parties is that the hotel has ten rooms or more for lodging, is in

the midst of thickly populated area at the hub of commercial centre and commercial activities of the town and is very near to the General Bus

Stand. There is no doubt that the hotel is located at a prime commercial site, perhaps the best commercial site available in the town. Because the

appellant did not led any evidence whatsoever about the actual income derived from the hotel business, both the courts below had to resort to their

own guess with regard to the income, which may or may not be wholly true. Anyway, that was more than ten years back. Much water has flowed

since then. Commercial, pilgrimage and tourist activities have increased manifold in the last ten years in and around Jammu City, what if one looks

at me tremendous and unprecedented rush of pilgrimage.

There is no doubt that the hotel is located at a place which attracts maximum numbers of pilgrimage, tourists and other visitors coming to

Jammu Town. I will not fall in the same error in which the two courts below fell, viz doing the guess work of the income from the hotel. But I have

no doubt in my mind that the income from the hotel based on the aforesaid factors has to be substantial and in any case much more than the income

which the respondent may be deriving from the shop under his occupation. Not only that one cannot lose sight of the fact that the hotel has a

potential for expansion whereas the shop has none.

One may examine the controversy between the parties from any angle, but one cannot help in coming to the conclusion that the appellant failed

to prove his reasonable requirement of the shop in question. On the other hand, the respondent led definite evidence to establish that he had no

other business and that if he was evicted from the shop, he would suffer great hardship.

On an overall assessment of the evidence led by the parties and after thorough and considerate perusal of the entire material on record I have

come to the conclusion that, in the totality of circumstances, the appellant failed to establish his reasonable or bonafide requirement of the shop

which alone could entitle him to a decree against the respondent. He failed to discharge this onus of proof. Even though the respondent was net

burdened with any particular responsibility of discharging any onus, yet by leading sufficient and reliable evidence, he succeeded in establishing that

he did require the shop for carrying out his business and because he had no ether means to support himself and his family, his eviction from the

shop, if ordered would work as actue hardship upon him and would be disadvantageous to him.

It thus appears that the learned trial Judge could not properly appreciate the relative strength of the evidence of the parties. As against that, the

learned lower appellate court appears to have been examined all the matters in controversy between the parties dispassionately and in true

perspective. It considered the evidence on a proper test stone and applied yardsticks which were appropriate and proper. I did not find any error

in the judgement of the lower appellate court and I am convinced that the appeal by the lower appellate court could not have been decided in any

other member or with any other result. I, therefore, have no hesitation in upholding the judgement and decree of the lower appellate court which is

impugned in this appeal.

For the foregoing reasons, therefore, I find no merit in this appeal and dismiss the same, but without any orders as to costs.