RAJENDRA SINGH Vs. SURESH CHANDRA
HIGH COURT OF RAJASTHAN
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M. C. JAIN, J. -
(1.)HEARD learned counsel for the parties and perused the judgments of the courts below.
(2.)LEARNED counsel for the appellant has challenged the findings on issues No. 2 and 6 relating to bonafide necessity and comparative hardship. It was urged by the learned counsel for the appellant that the plaintiff had neither pleaded nor proved that he will supervise the hotel, which he wants to establish in the premises in question. According to the learned counsel for the appellant, a new case was set up for the first time before the first appellate court. He urged that admittedly, the plaintiff is suffering from Tubercules and as per the medical evidence, he would not be in a position to run the hotel. It was essential for the plaintiff to have pleaded in such a situation that he would only supervise the work in the hotel and he will not involve himself as in any physical work. It may be stated that the plaintiff pleaded that he will establish a modern hotel in the premises in question. The very idea of running of a modern hotel implies that there will be some workers engaged by him and he will supervise their work. Whatsoever pleadings are there, in my opinion, the factor of supervision is implicit in the pleadings and that has rightly been considered by the first appellate court, so on that basis finding on issue no. 2, in my opinion, is not in any way vitiated.
It is further contended by the learned counsel for the appellant that it has not been established by the plaintiff that he would suffer greater hardship then the tenant in case premises in question are not vacated. No amendment was made in the plaint as to how the plaintiff would suffer greater hardship and there is no evidence that other accomodation is not available to the plaintiff. In this connection, suffice it to say that the premises in question belong to the plaintiff and there are no other premises available to him. The plaintiff wants to start business of hotel in his own premises and it is not necessary for him to go in search of any other accomodation.
As regards the pleadings of partial eviction, looking to the nature of business which the plaintiff wants to establish and looking to the nature of premises and its dimentions, the question of consideration of partial eviction does not arise.
The findings on both the issues, in my opinion, are the findings of facts recorded by the first appellate court and, they are not in any way vitiated.
No substantial question of law is involved in this appeal so far as the findings on these two issues are concerned.
(3.)I find no force in this appeal. The appeal is, hereby, dismissed without any order as to costs.
Learned counsel for the appellant urged that the defendant is in occupation in the shop in question for more than 30 years. He may be allowed sufficient time to deliver vacant and peaceful possession of the shop in question to the plaintiff. In the interest of justice, in my opinion, six months time would be reasonable. The defendant shall handover vacant and peaceful possession of the shop in question to the plaintiff within a period of six months from today and to that effect, he will submit an undertaking within a month In case, the undertaking is not filed within the time, the plaintiff would be at liberty to get the decree executed. .
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