VIKRANT KATHURIA Vs. KANTA DEVI
LAWS(J&K)-2006-5-20
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 31,2006

Vikrant Kathuria Appellant
VERSUS
KANTA DEVI Respondents

JUDGEMENT

- (1.) THIS civil second appeal coming up for motion hearing is directed against decree and judgment dated 21.10.2003 of Sub Judge, CJM, Udhampur in file No.50/30/Civil, whereby suit for ejectment of appellant, Vikrant Kathuria, from a shop situated at Ward No.3 (near Court premises), Udhampur, was decreed on the premise that the shop was needed by the plaintiff, Kanta Devi, for her husband, who had retired from bank service and wanted to do Bank Consultancy from the shop in question, allowing two months period to the appellant, defendant, to vacate and surrender the possession of shop in question to the landlady, as also against decree and judgment dated 30.09.2004 of District Judge, Udhampur, whereby he dismissed the appeal of the appellant providing three months time to the appellant to vacate the premises.
(2.) APPELLANT seeks to maintain this appeal on the grounds taken in paragraph 2 of the memo of appeal. Paragraph 2 of the memo of appeal reads, thus: - "2. That the present civil second appeal raises the following questions of law for judicial adjudication by this Honble Court: - (i) Whether the scope of section 11(1)(h) of the J&K Houses and Shops Rent Control Act can be construed to include a non -existant necessity on the date of filing of the suit till disposal of the suit as well as the first appeal, seeking eviction of the tenant? (ii) Whether a tenant in law can be asked to vacate and handover the tenanted premises on the ground of alleged personal necessity of the demised premises on behalf of person who is not dependant on the land lady? (iii) Whether in proceedings for ejectment under the J&K Houses and Shops Rent Control Act, dependence of the person for whom the premises is required, is a sine qua non for invoking the section 11 of the J&K Houses and Shops Rent Control Act? (iv) Whether the demised premises can be got vacated on the ground of necessity of a 3rd person for using the premises on the basis of alleged expertise, when per -se such expertise is non -existent? (v) Whether the findings returned by the Courts below suffer from the element of perversity on the appreciation of evidence for eviction of the tenant, does not fall in the purview of section 11 of the J&K Houses and Shops Rent Control Act, especially when it lacks essential requisites necessary therefor? (vi) Whether the test of reasonableness can get satisfied on the basis of the comparative analysis of the personal necessity between a tenant of 24 years and a land lord still serving in a Bank -
(3.) SH . S. D. Sharma, learned counsel appearing for the respondent, opposes the admission of this civil second appeal on the grounds viz., (i) concurrent findings of fact recorded by the two Courts that the suit shop was reasonably required by the respondent, landlady, for the use and occupation of her husband, cannot be questioned by the appellant, tenant, because of the bar enacted by Section 100 of the Code of Civil Procedure, which permits admission of a civil second appeal only if a substantial question of law arose from the case; (ii) the memo of appeal raises only alleged questions of law rather than substantial questions of law as contemplated by Section 100 of the Code of Civil Procedure; (iii) plea raised by the appellant in memo of appeal stands since settled by a catena of judgments of Honble Supreme Court of India, and as such no interference is required with the impugned decrees; and (iv) the questions framed by the appellant in his memo of appeal do not arise out of facts of the case. Learned counsel refers to 'Raghunath G. Panhale (Dead) by LRS. V. Chaganlal Sundarji and Co. reported as (1999) 8 SCC 1; 'Vinay Kumar and others v. Distt. Judge, Ghazipur and others reported as 1995 Supp (2) SCC 586; 'Gaya Prasad v. Pradeep Srivastava reported as (2001) 2 SCC 604; and 'Joginder Pal v. Naval Kishore Behal reported as (2002) 5 SCC 397.;


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