Damodar Prasad Tiwari vs Chunnilal Sen

N.K. Gupta, J.—Heard on admission.

The appellant has filed a civil suit No.96- A/2003 before third Civil Judge, Class-I, Jabalpur for eviction of the respondents from the suit property on the basis of bonafide need to run a shop and that the respondents have closed the shop for more than 6 months and the accommodation was not being used for the purpose for which it was taken on rent. The suit was dismissed vide judgment and decree dated 29.11.2006. In civil appeal No.1-A/2007, second Additional District Judge, Jabalpur vide judgment and decree dated 17.10.2008, dismissed the appeal. Being aggrieved with the aforesaid judgments and decrees, the present second appeal was preferred.

The facts of the case, in short, are that, the appellant gave a shop No.1-A, situated at H.No.539, Ganjipura, Rammanohar Lohiya Ward to one Arun Kumar Sen. Shop is situated in Annapoorna market and it was given for non residential purpose. Monthly rent of Rs.600/- was fixed. On 6.9.2001, Arun Kumar Sen had expired and thereafter, the respondents closed the shop. Shop was closed since six months prior to the filing of the civil suit. The appellant has filed a civil suit for eviction of the suit property. On the aforesaid reason as well as the reason that he needed the shop to start General store in the suit property and therefore, he gave a legal notice for ejectment and ultimately filed a civil suit for ejectment and arrears of rent and mean profit.

The respondents in their written statement, denied the claim of the appellant. It was pleaded that Pushpa Sen, wife of the deceased Arun Kumar Sen was running a shop. The appellant took a premium of Rs.1,20,000/- with the promise that he would pay interest @ 6% per month on the amount of premium but, no such amount was tendered by him. Actually, the appellant has no bonafide need. He has so many shops in the market and he was in habit to rent out various shops, after taking huge premium. There was no bonafide need of the appellant. Consequently, it was prayed that suit filed by the appellant be dismissed.

The trial Court after framing the issues, recorded the evidence of the parties and thereafter, dismissed the suit on the pretext that the appellant could not prove any of the ground for eviction. The appeal filed by the appellant was also dismissed by the first appellate Court.

After considering the submissions made by the learned counsel for the appellant, it appears that the appellant does not prosecute the ground that shop was closed, 6 months prior to initiation of the civil suit or it was not being used for prosecuting any business. However, if evidence of the parties on that point is considered then, it would be apparent that the appellant could not prove that shop was closed for more than 6 months and the legal representatives of the tenants have stopped the business done by the original tenant in the shop and therefore, both the Courts below have rightly dismissed the civil suit on that ground of closer of the shop.

Learned counsel for the appellant has challenged that the Courts below have denied the bonafide need of the appellant. According to him, need of the appellant was denied because he did not plead in the plaint that he would start a tailoring shop in the rented shop. In this connection, he has placed his reliance upon the judgment passed by Apex Court in case of Raj Kumar Khaitan and others Vs. Bibi Zubaida Khatun and another, , in which it is held that clear assertion by landlords as to requirement of premises for setting up business, precise nature of business need not to be stated. However, the judgment passed by Apex Court cannot be applied in the present case. Firstly, it is not established that eviction provisions relating to bonafide need for a non residential property of Bihar rent control Act were same as of the M.P. State and secondly, it is not a case, in which the appellant did not state his wishes to initiate a business in the tenancy shop. If pleadings of the appellant are perused then, it would be apparent that he pleaded that he requires the shop to start a General Store, whereas in his evidence he did not show his wish that he wanted to start a General Store but, he has stated that he would start a tailoring shop. It is a case of variance between pleadings and proof. Nature of the need as pleaded by the appellant was not proved by the appellant, even by his oral evidence, where he had stated about a need, which was not pleaded.

Also, he did not express before the trial Court that whether he had knowledge of tailoring or he would start the shop of tailoring with help of trained tailors and he would have acted as Manager of the shop. Under such circumstances, where the appellant was not sure about his business then, certainly his need cannot be stated to be bonafide. If he would be willing to start a general store in the shop then, he would have shown the availability of capital to run that shop and information about the person, who would manage the shop but, in his evidence, he kept silent on his own pleadings. Under such circumstances, the Courts below have rightly found that the appellant could not prove his need to be bonafide.

Learned counsel for the appellant has challenged the findings of the Courts below that the appellant has placed his reliance upon the judgment passed by the Apex Court in case of "Raghvendra Kumar Vs. Firm Prem Machinery and Company", [(2009) (1) JLJ 186], in which it is held that if alternate accommodation is vacant then, landlord is the best judge of his requirement . He cannot be non suited, when he wishes that disputed shop is suitable for his business. In the present case, the appellant (P.W.1) has accepted in para 8 of his cross-examination that he purchased 18 shops on the ground floor and 18 shops on the first floor in the year 1991 in a particular market and thereafter, he took the premium from all the tenants and rented out all the shops in the ground floor. However, he has stated that shops of first floor were not given to him by the builder. When a suit for bonafide need is brought then, it is for the plaintiff to disclose the particulars of various accommodations and he has to plead that the vacant accommodations are not suitable for his bonafide need. Ravishankar (P.W.2) did not say that shops on the first floor of the market were not in possession of the appellant. He has stated in para 3 of his statement that no shop of ground floor or first floor is lying vacant. Looking to the contradictions in the statement of the appellant as well as Ravishankar, it appears that some shops of the first floor of the market are lying vacant and the appellant was not telling a truth. If all the shops of first floor were rented out then, the appellant would not have said that he could not get the possession of all the shops of first floor. It appears that some of the shops of first floor are still lying vacant and therefore, it was for the appellant to plead and prove that shops which were lying vacant on the first floor were not appropriate to meet his bonafide need. On the contrary, he has hidden the fact that some of shops on first floor were lying vacant. Under such circumstances, where the appellant himself did not plead that the vacant accommodation is not suitable to him, the judgment passed in case of Raghvendra Kumar (supra) is not applicable in the present case. The Courts below have rightly found that the appellant could not prove the fact that he had no alternate accommodation for his need.

After considering the aforesaid situation, no illegality or perversity is visible in the judgments passed by Courts below. There is no reason to make any interference in the concurrent findings of both the Courts below. No substantial question of law arises, so that the present second appeal may be considered for final hearing. Under such circumstances, the present second appeal filed by the appellant Damodar Prasad Tiwari is hereby dismissed at motion stage.

Copy of the order be sent to both the Courts below alongwith their records for information and compliance.