Elpayers Tailor vs Ravishankar Awasthi

T.P. Sharma, J.—This second appeal u/s 100 of the Code of Civil Procedure, 1908 is directed against the judgment & decree dated 2-11 -2001 passed by the 1st Additional District Judge, Jagdalpur in Civil Appeal No. 20-A/2001 modifying the judgment & decree dated 31 -1 -2001 passed by the 1st Civil Judge Class-II, Jagdalpur in Civil Suit No. 11-A/2000, whereby learned Civil Judge Class-II has decreed the suit for possession and means profit in favour of the Respondent.

Following substantial question of law has been formulated for the decision of this appeal:

Whether both the Courts below were justified in granting a decree for eviction u/s 12(1)(f) of the C.G. Accommodation Control Act in favour of the Respondent/Plaintiff?

Brief facts leading to filing of this appeal, as pleaded by the Respondent, are that the Respondent is owner & landlord of the suit premises situated at Hospital Road, Jagdalpur and the Appellant is tenant. The accommodation was leased out for non-residential purpose on monthly rent of Rs. 550/-. The accommodation is required bona fidely for the business of hardware & godown for the Plaintiff and his sons. Notice was served upon the Defendant, but the Defendant/Appellant has not vacated the suit accommodation, hence the suit for ejectment and arrears of rent was filed before the trial Court. Relationship of landlord & tenant is admitted by the Appellant. The Appellant has pleaded in his written statement that in the year 1991 it was agreed between the parties that the Appellant will enhance 10% rent after three years. The Appellant has paid rent regularly but the Respondent is interested to enhance the rent three times. The Respondent is not in the habit of issuing receipt of rent received by him. The suit accommodation is not required bona fidely. The Respondent/Plaintiff is in possession of suitable alternate accommodation in the suit premises and also at Jagdalpur city which is sufficient to satisfy the need of the Plaintiff. After affording opportunity of hearing to the parties, learned trial Court has decreed the suit for eviction and arrears of rent, and the same has been affirmed in civil appeal by modifying the judgment & decree and instead of Rs. 151- per day means profit, Rs. 550/- per month means profit was awarded.

Judgment & decree of the lower appellate Court is challenged by the Appellant on the ground that without any ground available u/s 12(1)(f) of the Chhattisgarh Accommodation Control Act, 1961 (for short ''the Act''), the trial Court has decreed the suit and the lower appellate Court has affirmed the decree in appeal and thereby committed illegality.

Counsel for the parties are heard, judgment impugned and record of Courts below perused.

Learned Counsel for the Appellant vehemently argued that at the time of filing of the suit and at the time of decree, shop No. 5 was vacant, another shop No. 11 also became vacant, but the Respondent has given the said shops on rent and finally he sold shop No. 11. Both the shops were sufficient to satisfy the need of the Plaintiff/Respondent for opening hardware shop & godown, however, the Respondent has not started his business which shows that the need of the Plaintiff is only dire need & not bond fide need, and the Respondent has filed civil suit with a view to enhance the rent or to lease out the suit accommodation to another person at enhanced rate of rent.

On the other hand, learned Counsel for the Respondent argued that relationship of landlord & tenant is not disputed. The Respondent/Plaintiff has proved by cogent evidence that the accommodation is required bonafidely for himself and his sons for the business of hardware & godown. The alleged accommodation shop Nos. 5 & 11 were not sufficient to satisfy the need of the Plaintiff, the Plaintiff is the best judge to decide as to which one would be sufficient to satisfy his need, choice of the Plaintiff must be respected, and once the Plaintiff/Respondent makes out the case for eviction on the ground of bona fide need, his claim cannot be denied on the ground that he is having alternate accommodation. Learned Counsel placed reliance in the matter of Akhileshwar Kumar and Others Vs. Mustaqim and Others, in which the Apex Court has held that once landlord proves his bona fides to the objective satisfaction of the court of facts, the choice of accommodation which would satisfy his requirement should be left to landlord''s subjective choice. Court cannot impose its own choice. However, the landlord''s choice must be reasonable not whimsical.

In order to appreciate the contentions of the parties and to arrive at a finding upon the substantial question of law, I have examined the oral & documentary evidence adduced on behalf of the parties.

Pramod Awasthi (PW-1), son of the Plaintiff, has deposed that his brother Satish Awasthi wants to start the business of sanitary & hardware and they have filed suit for eviction against the Appellant herein and another co-tenant Bharat Sates Agency, both the shops were adjoining and will satisfy the need of showroom & godown. Ravishankar Awasthi (PW-2), the Plaintiff, has also deposed that his son wants to start the business of sanitary & hardware and two shops adjoining are required. He has deposed in para 6 of his evidence that previously one shop at High School Road and another shop at Hospital Road were vacant, but they are in different places. He has requested the present Appellant & co-tenant Bharat Sales Agency that they may take the above two shops on rent, but - they have refused to take the said shops on rent. Satish Awasthi (PW-3) has also deposed that he wanted to start the business of sanitary & hardware and two shops will be required to satisfy the need.

The Appellant herein Abdul Sabbir Khan has examined himself and has deposed in his evidence that previously the rent was Rs. 100/- per month thereafter, it was enhanced to Rs. 550/- per month. In para 7 of his evidence, he has deposed that five shops of the Plaintiff were situated on the School Road and eleven shops were situated on the Hospital Road. Shop Nos. 11 & 4 are still vacant. He has also admitted that the Plaintiff has proposed to him & Bharat Sales Agency for taking the aforesaid two shops on lease instead of the present suit shops, but they were smaller in size and about half in size, therefore; they have not agreed to the proposal.

This is the landlord''s suit for eviction on the ground of his bona fide need for non-residential purpose. Evidence of the Plaintiffs witnesses is sufficient to prove that the Plaintiff requires the suit accommodation for non-residential purpose for running the business of hardware & sanitary. During the pendency of the suit, two shops were vacated in different places, but according to the present Appellant, the said shops were small in size and about half in size, and even the Plaintiff has proposed the Appellant herein & co-tenant Bharat Sales Agency that they may take the aforesaid shops on rent and vacate the present suit shops, but on the ground of inadequacy they have not agreed to the said proposal. Evidence of the Plaintiffs witnesses is sufficient to prove the fact that the Plaintiff requires the two adjoining shops to satisfy his son''s bona fide need of running the business, they are the owners of the suit premises and they have also deposed that actually they want to start the business. They have denied the adverse suggestion that they have filed the suit with a view to enhance the rent. The present Appellant himself has admitted that the two shops which were vacant during the pendency of the suit were small in size, even both the shops will not satisfy his need as also the need of co-tenant Bharat Sales Agency and they are situated at two different locations.

The Plaintiff is owner & landlord of the property. His bona fide need must be respected. He has proved the bona fide need for eviction of the suit accommodation for non-residential purpose. According to the present Appellant himself, the two shops which had fallen vacant during the pendency of the suit were small in size and even the aforesaid shops will not satisfy his need. The present Appellant has also admitted that the Plaintiff has proposed to both the tenants for tenancy of the aforesaid two shops, but on the ground of inadequacy they have refused the proposal. If the alleged two shops which had fallen vacant during the pendency of the suit were not sufficient to satisfy the need of single business of the Appellant herein, it is difficult to hold that the same would be sufficient to satisfy the need of the Respondent herein. The evidence adduced on behalf of the parties is sufficient to prove that the Respondent herein requires the suit accommodation bona fidely.

As held by the Apex Court in the matter of Akhileshwar Kumar (supra), if once landlord proves his bona fides to the objective satisfaction of the court of facts, the choice of accommodation should be left to landlord, but the landlord''s choice must be reasonable not whimsical.

Evidence of the Appellant herein is sufficient to prove the fact that the choice of the Plaintiff is neither unreasonable nor whimsical. Both the Courts below have decreed the suit for eviction on the basis of the evidence available on record. Concurrent findings of fact of the two Courts below are neither unreasonable nor unjust. The finding relating to grant of decree for eviction u/s 12(1)(f) of the Act in favour of the Respondent by the Courts below are based on evidence.

For the foregoing reasons, the substantial question of law formulated for the decision of the appeal is decided as positive and as a result of the finding on the substantial question of law, the appeal deserves to be dismissed and it is hereby dismissed. No order as to costs.