CHAMAN LAL Vs. KEWAL KRISHEN
LAWS(J&K)-1986-11-12
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 14,1986

CHAMAN LAL Appellant
VERSUS
Kewal Krishen Respondents

JUDGEMENT

- (1.) THIS is defendants Civil Second Appeal against the judgment and decree dated 10.8.1981 passed by the learned District Judge, Anantnag (First Appellate Court) for the eviction of the appellants from the suit property as a whole, and arises in the following circumstances of the case.
(2.) THE plaintiffs respondents herein filed a suit for ejectment of the defendant/appellant from a building consisting of three storeyed Pacca house with tower, two shops, bath room etc. situated at Gazi Mohalla Anantnag, inter alia, on the ground that the suit premises were required by the plaintiffs for their own personal use. In the said suit, the plaintiffs also prayed for recovery of Rs. 1,000/ - on account of compensation for use and occupation of the suit premises at Rs. 333.33 per month with effect from October, 1973, to December, 1975, and for pandentelite compensation for use and occupation at Rs 450/ - Per moth. It was further averred in the plaint by tie plaintiffs that the suit premises was owned by the plaintiffs and leased out to the defendant for a period of one year on the basis of agreement of lease dated 8.121973 registered on 6.3.1974 with effect from 1.10.1973.
(3.) THE defendant resisted the suit inter alia, on the ground that the suit would be governed by the Rent Control Act and not by the Transfer of Property Act as alleged in the plaint and that the suit property was not required by plaintiffs for their personal use. In any case, the dis -advantage in the event of eviction of the defendant far out -weighs the dis -advantage, if any, of the plaintiffs. The following issues came to be framed by the learned trial court: 1) Whether the suit property is outside the purview of Rent Control Act, as the same is constructed in the year, 1972? O.P.P. 2) Whether the suit property is reasonably required by the plaintiffs for their own use? 0.P.P. 3) Whether the notice served by the plaintiffs for ejectment is in accordance with the terms of lease, if so, what is its effect on the suit? O.P.P. 4) Whether the defendant can take advantage of Rent Control Act and how? 0.P.D. 5) In case of proof of issue No. 4 in the affirmative what are the comparative advantages and dis -advantages of the parties in the event of his ejectment? O.P. Parties. 6) Whether sufficient court fees has not been paid? OPD 7) Whether the plaintiffs are entitled to recover the compensation from the defendant for use and occupation of the suit premises at double the rent fixed? O.P.P. 6) Whether the written statement is not in accordance with law. if so, what is its effect on the suit? O.P.P, 9) Relief, The additional issues were later on, framed, as follows : 10) Whether the defendant is a tenant holding over of the suit property as such is not liable for ejectment and what is its effect on the suit? O.P.D. 11) Whether the partial eviction is possible from the suit premises and what is its effect on the suit? O.P. Parties 6. The trial court of Sub Judge, Anantnag, after recording the sides, passed a decree on 21.11.1980 for ejectment with regard to two shops of the suit premises on the ground floor in favour of the plaintiffs against the defendant. The plaintiffs suit for rest of the suit property and for compensation of Rs. 1,000/ - was dismissed by the said court. 7. The defendant filed an appeal in the court of District Judge, Anantnag, and assailed the decree of the trial court for ejectment of two shops. The plaintiffs also filed a cross -appeal an J the learned District Judge, Anantnag, vide his judgment dated 108.1981 dismissed the appeal of the defendant and accepted the appeal filed by the plaintiffs and consequently, passed a decree as prayed for by the plaintiffs in the suit against the defendant for his eviction from the whole of the suit property. He also passed a decree for recovery of Rs. 1.000/ - as compensation for use and occupation of the leased premises from October, 1975. to December 1975. He further passed a decree for recovery of rant for four years 7 months at the rate of Rs, 4,000/ - per annum which amounted to Rs. 19,333.33 till ending July, 1981. The First Appellate court held the plaintiffs entitled to rent at the rate of Rs. 1.000/ - till the date of delivery of possession. 8. Aggrieved by this judgment and decree of the learned First Appellate court, the defendant has filed this Civil Second Appeal. 9. I have heard the learned counsel for the parties and have gone through the record. It may be mentioned here that during the course of arguments, the learned counsel for the parties wanted to file written arguments also, and they were allowed to do so. Later on only the learned counsel for the respondents filed the same. 10. It may be stated at the very outset that in all, 11 issues were framed by the trial court Some of them have not been passed in the trial court itself, and some have not been pressed in this court. In this appeal, the controverty lies within a very narrow compass and after considering the core of the arguments advanced at the Bar, I propose to decide the following points only: - 1) Whether or not the plaintiffs were entitled to a decree of ejectment against the defendant in respect of the suit house as a whole, on the ground of personal necessity ? 2) Whether the plaintiffs are entitled to recover the compensation from the defendant for use and occupation of the suit promises at double the rent fixed ? 11. Before dealing with the merits of the above set points, I would like to detail below some of the admitted un -controverted facts, which have emerged from the pleadings of the parties and the evidence led by them : 1) Para No. 1 of the plaint reciting ownership of the plaintiffs is admitted in written statement. Jagar Nath cannot be introduced as co -owner. It is not alleged that the plaintiffs are members of Hindu Joint Family alongwith their father; 2) Plaintiffs are carrying on their cloth business in partnership with their father in rented shop at Adda Bazar; 3) Defendant resides at srinagar and has his shop and business at Srinagar; 4) Defendant does not run the shop at Anantnag personally. He has engaged one Janki Nath as his servant over there; 5) The father or the plaintiffs Jagar Nath has sold his house during the course of suit proceedings; 6) Defendant has also one more shop at Adda Bazar Anantnag, where he conducts his business through a paid servant; 7) The suit property is used as godown by the defendant and some times for his residence; 8) That many shops and buildings have been constructed during the period of the suit. 12. Now, reverting to the first point set up above, I would like to make clear the legal position at the very outset that clause (h) of Section 11 (1) of the Jammu & Kashmir Houses and Shops Rent Control Act (here -in after referred to as Act) provides that where the house or shop is reasonably required by the landlord; (i) either for purposes of building or re -building; (ii) or for his own occupation; (iii) or for the occupation of any parson for whose benefit the house or shop is held, the landlord subject to the conditions engrafted in the proviso and explanation attached to the clause, he can evict the tenant or any of these grounds. The explanation provides that for the purpose of determination of reasonable requirement by the landlord for building or re -building, regard is to be had to public advantage or dis -advantage by extending or diminishing accommodation. Where the ground for eviction is the reasonable requirement of the landlord for his own occupation or for the occupation of any person for whose benefit the house or shop is held, the explanation provides that the comparative advantage or dis -advantage of the landlord and the tenant shall be duly weighed by the court at the time of passing a decree for eviction. The clause has a second proviso which empowers a court to order partial eviction when it thinks that the requirement of such occupation of a house or shop may be substantially satisfied by evicting a tenant to a part only of the house or shop and allowing the tenant to continue occupation of the rest In such a case, the tenants agreement of such occupation is necessary. This position is clear from clause (h) of Section 11 (1) of the Act, which is re -produced below, for the sake of convenience: (h) Where the house or shop is reasonably required by the landlord for purposes of building or re -building, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held; Provided that all sub -tenants in the house or shop are made parties to the suit and allowed opportunity or contesting claim to decree for ejectment. Explanation: - The court in determining the reasonableness of requirement for purposes of building or re -building shall have regard to the comparative public benefit or dis -advantage by extending or diminishing accommodation, and in determining reasonabless of requirement for advantage or dis -advantage of the landlord or the person for whose benefit the house or shop is held and of the tenant; Provided that where the court thinks that the reasonable requirement of such occupation may by substantially satisfied by evicting the tenant from a part only of the house or shop, and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the court shall pass a decree accordingly and fix a proportionally fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the house or shop within Clause (3) or clause (5) of Section 2 and the rent fixed shall be deemed to be the fair rent fixed Under Section 2; 13. For applying the above legal tests to the facts of the present case, it shall have to be seen in the first instance whether the plaintiffs reasonably require the suit house for their personal use. If that is proved then it has to be -seen as to in whose favour the balance of convenience lies; i.e. the relative hardship which may be caused to the tenant or landlord in case of granting or refusing a decree for eviction is to be weighed. The comparative advantage and dis -advantage has an important bearing on the question of granting or refusing the relief. 14. The plaintiffs have brought on record sufficient evidence to prove that they reasonably require the suit house as a whole, for their personal use. The suit house consists of three storeys. In the ground storey, it has two shops and in the upper stories it has some rooms. The plaintiffs require the shops for their own business. They also require some accommodation for residential purposes, as they are themselves living in a rented house. The testimony of the PWs Ghulam Nabi, Jia Lal, Shambu Nath, Khazir Mohammad, Bans! Lal and Moti Lai Razdan as also of the plaintiff has been considered, which, in my opinion is sufficient to establish the factum of reasonable requirement of the suit property by the plaintiffs. The PW Shambu Nath has disposed that the plaintiffs are carrying on their business in rented shops, and they live in a congested house which is not sufficient to accommodate them. The PW Khazir Mohammad has deposed that the accommodation with the plaintiffs is very small, and the suit house is used by the defendant as a godwon. The PW Jia Lal has deposed that the defendant has another shop in his possession, in which he sells tobacco etc., and he uses the suit house as a godown. The PW Ghulam Nabi has also stated the same thing. The plaintiff Moti Lal has deposed that the suit property was let out to the defendant for one year in October, 1973. They cannot accommodate their big family in a congested house. He intends to start his new business of selling sarees in the suit shops. The defendant has in addition the suit shops, one more rented shop at Anantnag, where he sells tobacco. The defendant alongwith his partner are doing their business at Srinagar, and are also living there. The plaintiffs on the other hand, are doing their business in the rented shops. 15. In rebuttal, the defendant has also produced some evidence. I have gone through the testimony of DWs Niranjan Nath, Manzoor Ahmad, Ghulam Qadir, Mohammad Afzal Wani, Ghulam Mohi -ud -Din, Mohammad Yousuf Zargar, Wali Wani, Ghulam Mustaffa and Jaggar Nath. In my opinion, the defendants evidence is in no way sufficient to dis -prove the plea of the plaintiffs that they reasonably require the suit property for their personal use. The DW Jaggar Nath, though father of the plaintiffs, was examined by the defendant as one of his witnesses. No doubt, he is a partisan witness, but having been produced by the defendant as his witness at his own risk, he is bound by his testimony. He has deposed that the plaintiffs are his sons, and they are his partners in his cloth business, being run in a rented shop. He has sold out his residential house over which the plaintiffs had no right. He has started constructing a new house which is still incomplete He has further deposed that the plaintiffs are livining at Khanabal in some rented rooms. In the year, 1972, he and his sons (plaintiffs) have partioned their property, and since then, their joint family has come to an end. He has strained relations with the plaintiffs due to the sale of his house. 16. I have given my serious consideration to the facts of the case, and in my opinion, the, - plaintiffs reasonably require the suit property for their personal use. They are living in a rented house, and are carrying on their business in a rented shop. This itself is sufficient to show their imperative need for getting the suit property for their own use. As against this, the defendant is carrying on his business both at Anantnag and at Srinagar through his servants. It is on record, that besides some shops, he has six godowns in Srinagar. The law does not require the landlord to establish absolute need or absolute requirement, without which he shall have no shelter over his head. The word "requirement" as used in clause "h" (supra) does not mean that the land lord is to be denied reasonable comforts to which tie is legitimately entitled by reason of the ownership of the premises. Ordinarily, the statement of the landlord as to his requirement should betaken to be true, unless there is something to suggest that it is a pretext. 17. Now as to comparative advantage and dis -advantage in case of granting or refusing the relief to either party, I think there is sufficient material on the record to show that the defendant will not suffer any dis -advantage if he is evicted from the suit property. There is evidence of his flourishing business, both at Srinagar and at Anantnag. He carries on his business through his servants. He puts up at Srinagar, He has one more shop at Anantnag where he carries on the business of selling tobacco and molasses. He uses the suit property for the purposes of godwon only. As against that the plaintiffs are living in a rented house and are carrying on their business also in a rented shop. In such circumstances, if they are not allowed to get their own property back for their personal use, it would frustrate the very concept of ownership. As a matter of fact, they will suffer greater dis -advantage if the relief oryed for is not granted in their favour. The expression commorative advantage and dis -advantage has to be interpreted in a rational and reasonable manner. Reasonable requirement does not mean that there must be a dire nac3ssity of a landlord and he must be shelterless before he can be given possession of his own property from a tenant. In AIR 1979: S.C. : 272; it has bean held that the connotation of the term need" or "requirement" should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act, which affords the facility of eviction of the tenant to the landlord on certain specified grounds. It has further been observed that it is, no doubt, true, that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed and fully in contemplation of the Legislature, when Section 11 ( ) (h) was introduced in the Act. In deciding the extent of the hardship that may be caused to one party or the other, in case a decree for eviction is passed or is refused each a decree for eviction is passed or is refused each party has to prove its relative advantage or dis -advantage and the entire onus cannot be thrown on the plaintiff to prove that lesser dis -advantage will be suffered by the defendants and that they were remediable. 18. In the instant case, it has bean 9stab!ished that the plaintiffs have a genuine requirement to possess the house not only for their residential purposes but also for augmenting their income, so as to maintain themselves properly. Being the owners of the house they cannot be denied eviction and be compelled to live in a rented house and carry on their business in a rented shop merely to enable the defendant to carry on his flourishing business, both at Sriragar and Anantnag at the cost of the plaintiffs. 19. In the above mentioned circumstance of the case, there is no reason to refuse the decree of eviction in favour of the plaintiffs. 20. Now, as regards the second question set up above, which also forms issue No. 7 in the suit, I think there is no reason to differ with the finding of the learned District Judge recorded on this score. The defendant cannot escape the payment of rent due from him to the plaintiffs. The learned counsel for the appellant/defendant has not advanced any arguments on this issue and therefore, it shall be deemed to have been left as not pressed. 21. For the reasons given above, the appeal is dismissed. The judgment and decree passed by the learned District Judge, Anantnag, is hereby confirmed. The costs shall follow the result. 22. The appeal file shall be consigned to records. The record received from the District Judge shall be remitted back to him.;


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