Dismissed

Elpayers Tailors v. Ravi Shankar Awasthy

Chhattisgarh HC7 Sept 2009SA/465/2001

Case brief

AI extract

What is this about?

In a second appeal against an eviction decree, the High Court held that the landlord satisfied the requirement of bona fide need for running a hardware and sanitary business. The Court found the landlord's choice of premises reasonable and dismissed the appeal, affirming the eviction order.

What did the court decide?

The second appeal was dismissed, and the eviction decree in favour of the respondent was affirmed.

Elpayers Tailors Vs Ravi Shankar Awasthy — Landlord and Tenant | Chhattisgarh HC (2009)

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IN THE HEGH CGURT OFJUDICATURE AT BILASPUR

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SECOND APPEAL No.4é56F 2001.^%

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2 g gm^{y W} H H,

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APPLICATION UNDER ORDER 41 RULE 5 OF THE CODE OF CIVIL PROCEDURE FOR GRANT OF STAY.

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Appell§nt /" Defende‘ntj VERSUS

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Elpayers Tailor Through its proprietor^Abdul Sattar Khan. Aged about 52 years. Resident of Aspatal Road Pratap ganj, Jagdalpur. Di$trict - Bastar, chhattisgarhs

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Respondent /' Ravishankar Awasthi Plaintiff / s/o Ram Awtar Awasthi Resident of High Schoal Road Pratap sanj. Jagdalpur Chhattisgarh.

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HIGH COURT OF CHHATTISGARH

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W?g@\°a‘

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APPELLANT:

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Second AQQeal No.4§5 of 2001

Elpayers Tailor

Versus

RESPONDENT:

Ravishankar Awasthi

Post for Qronouncement of iudgment on 8t" Septemberl 2009

sw-^’#

T. P. Sharma

Judge

v u! {

HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.465 of 2001

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APPELLANT/: Elpayers Tailor, Through its proprietor (Defendant) Abdul Sattar Khan, aged about 52 years, R/o Aspatal Road, Pratap Ganj, Jagdalpur, Distt. Bastar, Chhattisgarh. Versus R ESPONDENT/: Ravishankar Awasthi, S/o Ram Awtar (Piaintiff) Awasthi, R/o High School Road, Pratap Ganj, Jagdalpur, Chhattisgarh.

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{Second^{appealunderSection100oftheCodeofCivilProcedure,} 1908}

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Presen t:

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Mr. Sanjay K. Agrawal, counsel for the appellant.

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Mr. Prafull Bharat, counsel for the respondent.

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Single Bench: Hon’ble Mr. T.P. Sharma, J

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JUDGMENT

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(Delivered^{on8t“September,2009)}

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~%“ ,‘ly'w $§

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This second appeal under Section 100 of the Code of Civil Procedure , 1908 is directed against the judgment & decree dated 2—11~2001 passed^bythe 15‘ Additional District Judge, Jagdalpur in Civil Appeal No.20-A/2001 modifying the judgment & decree dated 31—1—2001 passed^bythe 15“ Civil Judge Class—II, Jagdalpur in Civil Suit No.11—

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'A/2000, whereby learned Civil Judge Ciass-II has decreed the sui t

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f^()I l)()S e H I” n pr f H f f f h r n ell

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. Following substantiai question of iaw has been formulated for the decision of this appeai: -

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“Whether both the Courts below were justified in

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granting^{adecreeforevictionunderSection} 12(1)(f) of the C.G. Accommodation Controi Act in favour of the respondent/piaintiff?”

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. Brief facts leading to filing of this appeal, as pieaded by the ’

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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~residentiai purpose on monthly rent of Rs.550/—. The accommodation is required bona fide/y 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,

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#ewss

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hence the suit for ejectment and arrears of rent was filed before the triaLCourt. 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 accdmmodation is not required bona fide/y. 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 Co urt has decreed the suit for eviction and arrears of rent, and the affirmed in civil appeal by modifying the judgment & decree and instead of Rs.15/- per day means profit, Rs.550/— per month means profit was awarde.d . Judgment & decree of the lower appellate Court is challenged by the, appellant on the ground that without any ground available under Section 12 (1) (f) of the Chhattisgarh Accommodation r1961 (for^short‘the Act’), the trial Court has decreed theControlsuit Act,and the lower appellate Court has affirmed the decree in appeal and thereby committed illegality. . Counsel for the parties are heard, jud gment impugned and record of Courts below perused.

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. Learned counsel for the appellant vehemently argued that at the

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_ 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 respondent plaintiff/ for opening hardware shop & godown, however, the

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reSp’ondent has not started

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‘of his business which shows that the need

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the plaintiff is only dire need & not bona fide need, and the

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respondent has filed civil suit with a view to enhance the rent or to ' lease out the suit accommodation to anot her person at enhanced

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rate of rent. L

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’On

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. the .other hand, learned counsel for the respondent argued that

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relationship. of landlord

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l . & tenant is not disputed. The respondent/

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patfflini has proved by cogent evidence that the accommodation is required bona fide/y for himself and his sons for the business of hardware & godown. The aiieged 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^{mustberespected,andonce} ' the plaintiff/respondent makes out the case for eviction on the ground^{ofbonafideneed,} 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 v. Mustaqim and others reported in (2003) 1 SCC 462 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^{shouldbeleftto} landlord’s subjective choice. Court cannot impose its own choice. However, the landlord’s choice must be reasonable not whimsical.

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'. 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.

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. 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 Sales Agency, both the shops were adjoining and will satisfy the need of showroom & godown. Ravishankar Awasthi (PW—2),^the plaintiff,^{hasalsodeposedthathis} 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 shdps 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.‘

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10.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 _

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para⁷ 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 a dmitted 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 i n size, therefore, they have not agreed to the proposal. 11.This is the landlord’s suit for eviction on the ground of his bona fide need for non—residential purpose. Evidence of the plaintiff’s 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 snaps, but on the ground of inadequacy they have not agreed to the said proposal. Evidence of the plaintiff’s 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.

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1.he2T 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

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satisfy the need of single business of the appeHant 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.

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13.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.

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14.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 under Section 12 (1) (f) of the Act in favour of the respondent by the Courts below are based on evidence.

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1 5.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.

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Sd/-

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T. P. Sharma Judge

Elpayers Tailors v. Ravi Shankar Awasthy

Case brief

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Elpayers Tailors v. Ravi Shankar Awasthy

Case brief

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