D.P.GUPTA, J. - (1.) IN this second appeal the only question which arises for consideration is as to whether the plaintiffs -appellants require the suit shop for their reasonable and bonafide personal necessity
(2.) THE trial court decreed the suit for ejectment but the first appellate court dismissed the suit holding that the bonafide necessity of the plaintiff for the suit shop was not proved. During the pendency of this appeal an issue relating to comparative hardship was framed and the same was remitted for trial to the Additional District Judge, whose findings dated April 23, 1977 have been received in this Court along with the record and the evidence led by both the parties on the aforesaid additional issue, relating to comparative hardship. The appellants had also filed an application today by a separate order. The dispute relates to a small triangular shop which is said to be 5' or 6' at the entrance and according to the plaintiff is 22' deep, situated near railway station Jodhpur, on which the defendant -respondent Premchand is carrying on his 'parchuni' business since 1950. The case of the plaintiffs, as spelt out in the plaint, was that the plaintiffs were doing business of tubes, tyres, ball -bearings, axles, vulcanising and patching on a rented shop. The plaintiff Abdul Shakoor has five sons and the shop in dispute and some other shops adjoining thereto are alleged to have fallen to the share of plaintiff Abdul Shakoor as a result of partition between him and his brothers. The plaintiff wanted to expand his business and establish his sons. It is alleged that the shop in dispute was required by the plaintiff for the bonafide use and occupation of himself. The defendant's case was that the plaintiff has several other shops and that the shop in dispute is so small that it is not fit for the business for which the plaintiffs alleged to require it. It is a triangular shop with only three walls and was not of any use to the plaintiffs for the alleged 'kabadi' business in tubes and tyers, vulcanising etc.
(3.) ALTHOUGH the trial court held the bonafide necessity of the plaintiffs proved, yet on appeal the appellate court exhaustively discussed the evidence on record and came to the conclusion that the alleged necessity of the plaintiff was not bonafide. One of the reasons which led the learned Additional District Judge to come to the aforesaid conclusion was that at the stage of evidence the plaintiff Abdul Shakoor modifided his stand from that initially taken by him in the plaint and stated that after his two other shops adjoining the shop in dispute would be vacated, he would reconstruct the shop by including therein the shop in dispute with a portion of the adjoining shop. It was brought out in evidence that the neighbouring shop in which Mahmoodi. Hotel was earlier located was six times bigger than the shop in dispute. The defendant's case was also not disputed by the plaintiffs that the shop in dispute is only 5' or 6' at the entrance and is only a triangular one with no fourth wall and it could not be used as such for the business for which the plaintiff alleged to require the same. It was in view of the defence taken by the defendant that the plea of reconstruction, which was not pleaded by them in the plaint. The first appellate court held that the indention of the landlord did not appear to be bonafide and that his requirement was neither bonafide nor reasonable. Another factor which was taken into consideration by the first appellate court was that the plaintiff had taken no steps for getting the other shops vacated and he also took no steps for getting a plan prepared and approved by the Municipal Council and further that this small shop could not serve the purpose of the plaintiff.;