(Sardar) Jagat Singh vs Gehimal

R.P. Gupta, J.

This second appeal is directed against the appellate judgment dated 18.11.87 in Civil appeal No.6 A/84 passed by II Addl. Judge to the court of Distt. Judge, Raigarh which was the appeal by the respondent/defendant, whereby the respondent''s plea against trial court decree of eviction against him was accepted and the judgment and decree of eviction were reversed. The present appellant in second appeal is the landlord/plaintiff.

The disputed premises is non-residential premises let out by the appellant to the respondent. The appellant has pleaded that he needs this premises for running a hotel business of his son Gurcharan and he had no other premises to fulfil that need. The suit was filed as far back as on 9.3.77. It was also alleged by him that an adjoining shop was let out to one Sunderlal and a similar suit against him for similar requirement had been filed, that the son of the plaintiff would run his hotel business in these shops by removing the intervening wall. In any case it was pleaded that for the time being he can run his business in one shop also. That plea was added by amendment in 1984.

There was no dispute regarding relationship of landlord and tenant. The defendant contested the suit on the only ground that there was no real or bona fide need of the plaintiff and he only wanted to increase the rent and further that he had alternate accommodation in the first floor of the same building and if at all his son wanted to run a hotel he could do so there as the other hotels are running in the neighbourhood on the first floor and also there was other business of the plaintiff such as huller machine for paddy. It was also brought out during the evidence that the plaintiff had sold some other premises which was also commercial in nature during the pendency of the suit. Ofcourse, they were stated by the plaintiff, to be godown, unsuited for running hotel business.

The trial court accepted the plea of the plaintiff and ordered eviction of the defendant but the appellate court reversed that judgment holding that there was no real need of the plaintiff or his son. It was found that similar plea against the neighbouring shop of Sunderlal had failed in suit No. 6 A/83 and the finding was upheld till second appeal by the high-Court in S.A.No. 330/85 decided on 16.8.89. Thus it was held that the alleged need for using that premises for hotel was found not real and the High Court upheld that finding. The first appellate court noticed in the present case that in case of Sunderlal the plaintiff had earlier filed suit on the ground of need for Maniyari business. That suit was filed in 1971 and the dismissal was confirmed till second appeal in the High Court. It was thereafter that the plaintiff filed against Sunderlal another suit i.e. 6A/83 seeking eviction on the ground of requirement for the son for hotel business, which too failed. Thus the first appellate court was of the view that the ground regarding running the hotel in the both shops was frustrated and fell down. It was further noticed that first floor portion above the present disputed premises was rented with one Rao who had vacated that premises. He was running a office or shop there. The plaintiff could have used that portion for running hotel by his son but he did not do so.

It may be noticed that this second appeal was earlier dismissed by this court vide judgment dated 5.12.90. The landlord approached the Supreme Court in SLP which was converted into Civil Appeal No. 2648/94 and vide order 25.4.94 the Supreme Court set a side the order of this court and remanded the appeal back for decision afresh with observations as under;-

Observations made by the High Court in paragraph 3 of its judgment that the bona fide need of the petitioner was not proved because there was a discrepancy regarding the purpose for which eviction was sought, is not borne out from the evidence led by the plaintiff in his own statement. It appears to us that the High Court has totally misread the evidence on this point. Its importance cannot be overlooked and the finding recorded by the High Court stands vitiated. We are unable to proceed any further to test the appellate judgment and order of the Distt. Judge. The role to determine its correctness lies with the High Court. Therefore, it has necessitated a remand.

It is in these circumstances that the appeal again come up for decision in this court.

The learned counsel for the parties have been heard at length and evidence of both the sides has been placed before this court. Learned counsel for the appellant asserts that the area of the shop on rent with the defendant/respondent is 12'' x 22'' and in that area also the son of the plaintiff could run hotel somehow even if he had failed to obtain possession of the shop from Sunderlal. It is urged that Section 12(1)(f) of the M.P. Accommodation Control Act is the only ground stressed by him and S. 12(1) (h) was not attracted. The argument is that the bona fide need of the plaintiff is to be assessed from his angle and court is not to assess whether any other person could need the premises in such circumstances. Of course the court will look into bona fides. The argument is that the son of the plaintiff is not an employee and the plaintiff wanted him to be employed in the hotel business. It is urged that there is no reason why this plea should not be accepted. It is conceded that so far as the proceedings against Sunderlal are concerned, they have become final as they have not been challenged before the Supreme Court.

The contention of the counsel for the respondent is that the appellate court has gone into evidence, appraised its value and for reasons given had found that the plaintiff has been changing his stand regarding his need. He in fact wants eviction to make out money from property either by letting out in some other manner. The assertion is that for more than 20 years the son is alleged to be without business and at best the father of the son says that the son is doing nothing for his individual likelihood. The suit was filed in 1977. The son could not be awaiting for doing any work till he get possession of the two shops. It is also noticed that firstly the plea was that both the shops were needed for hotel running and then during the pendency of their first appeal he made an amendment by saying that his son could run a hotel even in one shop of the present respondent. Initially the plea was that his son wanted to run some business. He was not sure that the son wanted to run a hotel business. It is also argued by the learned counsel that if the son was without any work and there is evidence that other hotels are running in the immediate neighbourhood within a distance of 100 on the first floor there could be no reason for the plaintiff''s son not to start his business on the first floor. There is no statement that it was utilized for that purpose. The same grounds have been asserted by the counsel for the respondent as were accepted by the first appellate court.

The ground of eviction u/s 12(1)(f) of the Act is in the following terms :-

That the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is owner thereof or of any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.

The requirement has to be bona fide by the landlord. The purpose can be of continuing or starting his own business or that of major sons or unmarried daughters. In this case the pleaded requirement is starting of business of his major son. The business is specified for running of a hotel: The process of running of hotel was described as to the extent of covering two shops of the same size, to be turned into one premises by removing the intervening partition. That mode cannot be achieved as the suit against Sunderlal has failed. The mode of satisfaction of this need was attempted to be reintroduced by saying that hotel can be run in one shop. In evidence neither the plaintiff nor his son has stated as to how much portion of 12'' x 22'' of the disputed premises would be used for cooking and how much for serving and how much for storing or it would be a simple Dhaba or a restaurant. The plaintiff wants the court to believe on face value his statement. In judging whether the need is bona fide, the court can certainly look into the aspects as to what type of business has to run. If the plaintiff fails to give the details and the court sees the possibility of running that business not even remote the court will be justified in holding that the need is not established bona fide. The court can take notice of the fact as to how much area is to be covered for kitchen by a number of Bhattis, utensils and other articles for running a hotel. In this situation it is difficult that cooking will be carried out in the premises along with serving. It is not the case of plaintiff that they would cook inside the premises and serve the people outside the premises. The plaintiff wants the court to imagine on these aspects. The situation arises because the other part i.e. shop of Sunderlal is not available and he failed to establish that he bona fide needed that part for running a hotel. Even if we assume that finding on that case does not have a binding effect, but it certainly affects it, as initially it was stated that the hotel would be run in two premises. This court does not find that it will be possible to run a hotel business in premises of this type unless it was spelled out in detail. The plaintiff himself has come out with a case that his first floor is not suitable for running the hotel business.

The observation of the first appellate court is that in fact the plaintiff was unsure what he wants to do. His initial plea was of ''some business'', the amended plea was of a hotel business in two premises making them as one premises and the final is running hotel only in disputed premises which appears to be too small for the purpose. We may not ignore the fact that for the last 22 years the plaintiff is doing nothing to earn his livelihood. Can we say that all this time he has been waiting for running the hotel business. It has been finally found by the first appellate court that his need for hotel running business is not bona fide.

After considering the evidence this court finds that the appreciation of the same by the first appellate court regarding bona fide need of the plaintiff cannot be faulted. Therefore, it remains a finding of fact as the inference cannot be said to be perverse or illegal. So this court finds that in view of the facts and circumstances of the case as disclosed from the evidence on record, it cannot be said that the plaintiff bonafide needs the premises for running a hotel for his son. This finding of the first appellate court, therefore, cannot be disturbed.

As a result this appeal has no substance. The same is dismissed with costs of the present appeal.