GOYAL, J. - (1.) SINCE common points are involved, both the appeals were heard together. Brief facts giving rise to both the appeals are that the respondent-plaintiff Poonam Chand instituted a civil suit No. 12/1992 on 14. 10. 1991 for eviction of suit shop measuring 8'x7' against M/s. Kishan Lal Bhojraj Dugar and its partners. Second suit No. 576/1991 was instituted on 13. 11. 1991 for another adjoining shop of the same measurements against the sister concern namely M/s. Shree Agencies and its partners with the averments that both the shops were let-out on 20. 3. 1979 at monthly rent of Rs. 100/- and both the shops are required reasonably and bonafide for plaintiff's son Alok Jain to carry on computer business. It was also pleaded that since plaintiff himself is out of job, he would also help his son. Written statements were submitted. While admitting tenancy the grounds of eviction were denied in toto and it was pleaded that the plaintiff wants to enhance the rent.
(2.) ON the basis of the pleadings, issues were framed and after recording the evidence of the parties in both the suits learned Civil Judge (Junior Division) East), Jaipur City, Jaipur vide two separate judgments dated 2. 12. 1999 dismissed both the suits. The plaintiff filed two first appeals and both the appeals were allowed vide two separate judgments dated 8. 8. 2002 by learned Additional District Judge No. 5, Jaipur City Jaipur, Hence these two second appeals. I have heard learned counsel for the parties and have gone through the judgments and the evidence of the parties. Learned trial court held that the plaintiff has failed to prove his requirement for the suit shops as plaintiff's son Alok Jain first joined service in a company and then started his own business of cosmetic articles during the pendency of the suits; that Alok Jain is carrying on business in a shop measuring 12'x5' adjoining the shops in question; that the suit shops are not sufficient to carry on computer business; that one room was vacated by another tenant during the pendency of the suit which was used for business by earlier tenant. It was also held that the plaintiff would not suffer grater hardship in case the decree of eviction is not passed. It was also held that since the plaintiff has failed to prove his requirement, question of partial eviction does not arise. The lower Appellate Court while reversing the above findings held that plaintiff's son Alok Jain has cleared computer course vide certificate Ex. 2; that by joining temporary service and thereafter starting his own cosmetic business by Alok Jain in itself would not defeat his requirement; that he started this business in a gallery of 5 ft. width leading to his residential house; that Alok Jain could not be expected to sit idle till the suits are finally decided; that both the shops are divided only by a wooden partition and both the shops would be sufficient for carrying on computer business; that one room vacated by another tenant during pendency of these proceedings opening in the chawk of residential house of the plaints would not meet the requirement of the plaintiff; that one shop on rent with Zahoor was let-out in the year 1983 i. e. before eight years of filing the present suits and at that time Alok Jain was aged 13 years and it would also not afford a ground to reject the prayer of the plaintiff; that pendency of eviction suits of remaining two shops required for other members of the family is also no ground to defeat the requirement of the plaintiff and no other intention of the plaintiff has been proved and thus requirement of the plaintiff was both reasonable and bonafide. It was also held that comparative hardship would be caused to the plaintiff in case decree of eviction in not passed and partial eviction is also not possible. Two applications one under Order 41 Rule 27 C. P. C. and other under Order 6 Rule 17 C. P. C. were filed in this Court by the appellants with the averments that one other tenant Sh. Suraj Mal has vacated one shop of the same measurements adjoining to the shops in question and thus necessity of the plaintiff now does not subsist. It was also prayed vide this application under Order 6 Rule 17 C. P. C. that the may they may be allowed to amend their written statements accordingly. Replies were submitted to both the application admitting that the plaintiff-respondent has got vacant possession of one shop as stated by the appellant but the same would be required for starting business of computer as even according to appellants more space is required for computer business. According to learned counsel for the appellants, subsequent events can be and should be taken into consideration, hence both the application should be allowed. This legal proposition was not disputed by learned counsel for the respondent that subsequent events may be taken into consideration but he submits that any amendment in written statement on the basis of subsequent events is not necessary. Since this well established legal proposition is not disputed that subsequent events may be taken into consideration, it is not required to refer the decision cited by learned counsel for the parties on this point. Further, since subsequent events may be considered by this Court, it would be unnecessary to amend the written statement at this stage. Thus, both the application stand disposed of accordingly.
(3.) LEARNED counsel for the appellants has reiterated all the grounds upon which the trial court dismissed the suits for eviction. He further submitted that one adjoining shop was vacated by Suraj Mal after decision of the first Appellate Court and one other shop was vacated by M/s. Kushal Trading Company during pendency of the proceedings and thus requirement of the plaintiff as pleaded does not subsist. It was also submitted that Alok Jain had no experience of computer business and he did not take any step to start any such business and it shows that he never had any such intention to carry on computer business and only object of the respondents was to enhance the rent. According to learned counsel for the appellants, there was no ground for the first Appellate court to reverse the finding of the trial court based on evidence and the conclusions drawn by the first Appellate court are not based on any evidence and thus the finding of the first Appellate Court are perverse. It was also submitted that one shop vacated by M/s. Kushal Trading Company if taken to be room as contended on behalf of the respondent was used for business by earlier tenant and thus it can be used for computer business also. It was also submitted that the appellants are carrying on their business in the suit shops for a long time and keeping in view all the facts and circumstances, greater hardship would be caused to them. It was also submitted that partial eviction is possible as one shop vacated by Suraj Mal after judgment of the first Appellate Court is now with the respondent and thus suit shops may be given to the appellants. He placed reliance upon following judgments:- (i) In Panna Lal vs. Murlidhar (1), it was held that the grounds of eviction must exist on the date of filing of the civil suit and must continue to exist upto second appeal. In this case, the plaintiff-landlord died during the pendency of second appeal and on this ground it was held that necessity does not survive. But no such situation has arisen in the instant appeals. (ii) In M/s. Variety Emporium vs. V. R. M. Mohd. Ibrahim Naina (2), it was held that concurrent findings of lower courts may be interfered with if findings are shown to be manifestly unjust. (iii) In M. S. Zahed vs. K. Raghavan (3), it was held that High Court can re-appreciate the evidence to find out correctness of the order of the lower court. (iv) In Maqboolunnisa vs. Mohd. Saleha Quaraishi (4), it was held that during pendency of the proceedings in trial court, a shop adjacent to the demised premises was vacated and the appellant- landlady did not amend the pleading to assert that the vacated shop was not sufficient for her son's business and in that case, such evidence should not have been allowed that she would convert the shops into a big shop by breaking the wall and mere desire to have a very large shop cannot be equated with a genuine bona fide need. (v) In Deena Nath vs. Pooran mal (5), it was held that there must be an actual pressing need and not a mere whim or fanciful desire of the landlord. (vi) In Nilesh Nandkumar Shah vs. Sikandar Aziz Patel (6), it was held that the purpose of rent control legislation is to protect the tenants from unjust evictions at the hands of greedy or unscrupulous landlords. (vii) In S. J. Ebenezer vs. Velayudhan & Ors. (7), it was held that bona fide requirement of the landlord should be objectively tested and cannot be based on mere desire of the landlord and burden to prove is on the landlord. (viii) In Molar Mal vs. M/s. Kay Iron Works (P) Ltd. (8), the Hon'ble Supreme Court held that during pendency of the suit for eviction landlord got three plots through eviction proceedings, hence landlord is not entitled to evict the tenant. It was also held that High Court can go into the finding of the fact arrived at by the courts below and reverse the finding if it is based no no evidence. Per contra learned counsel for the respondent reiterated the grounds upon which the first Appellate Court passed a decree of eviction. It was further submitted by him that two shops in question and the third adjoining shop vacated by Suraj Mal after judgment of the first Appellate Court are of equal measurements- each of 8'x7'. It was the case of the appellants that shops in question were not sufficient in space to carry on computer business, hence third adjoining shop would meet the requirement of the respondent. It was also submitted that Sachin brother of Alok Jain is now 23 years old and he also requires shop for his business. It was also submitted that premises vacated by M/s. Kushal Trading Company is not a shop as contended by the appellants, rather it is a room which opens in chawk of residential house of the respondents and the same is not suitable for business activities as held by the first Appellate Court. It was also submitted that one room situated behind both the suit shops was and is still in possession of the appellants and they themselves may carry on their business in this room instead of asking the respondent to carry on his son's business in a room vacated by M/s. Kushal Trading Company. It was also submitted that presently Alok Jain is carrying on his business not in any shop but a gallery leading to his house was temporarily converted to carry on business of cosmetic articles. With regard to comparative hardship, it was submitted that appellants may carry on their business of agencies in a room situated behind both the suits and it was also submitted that no trading activities are carried out by the appellants in the suit shops and they simply carry out the orders booked on telephones or on showing the samples kept in suitcase as held by the first Appellate Court and partial eviction would not serve any purpose of the respondent. He placed reliance upon following judgments:- (i) In Joginder Pal vs. Naval Kishore Behal (9), The Hon'ble Supreme Court held that expression "for his own use" has to be construed not narrowly but liberally and the requirement for office of son of the landlord must be construed as requirement of the landlord himself which is bound to make son economically independent. (ii) In G. C. Kapoor vs. Nand Kumar Bhasin & Ors. (10), the Hon'ble Supreme Court held that in order to assess the bonafide need for business of computer intended for landlord's son, question of having necessary funds is not relevant. (iii) In Dattatraya Laxman Kamble vs. Abdul Rasul Moulali Kotkune and Another (11), it was held that landlord who seeks eviction on the ground of bona fide requirement of starting business need not establish that he possesses the know-how necessary for doing the business. If a person wants to start new business of his own it may be to his won advantage if he acquires experience in that line. But to say that any venture of a person in the business filed without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. (iv) In Gaya Prasad vs. Pradeep Shrivastava (12), it was held that subsequent developments can be taken into account only when need of landlord is completely eclipsed. (v) In Ms. Labanya Neogi (through L. Rs.) vs. M/s. W. B. Engineering Co. (13), it was held that finding recorded by the first Appellate Court with regard to bona fide requirement of the landlord after considering entire evidence on record is not liable to be interfered. (vi) In Ragavendra Kumar vs. Firm Prem Machinary and Co. (14), it was held that regarding suitability of the premises, it is the landlord who is the best judge in the matter. I have given my thoughtful consideration to the rival submissions in the light of the judgments cited by both the sides and am of the view that findings arrived at by first Appellate Court with regards to reasonable and bonafide requirement of the landlord, greater hardship and partial eviction are based on appreciation of entire evidence available on the record and same, in no way, can be called as perverse. Admittedly, one room was vacated by another tenant during pendency of the proceedings and one adjoining shop to the suit shops was vacated by another tenant after judgment of the first Appellate Court, but the requirement of the landlord for the suit shops cannot be termed as unreasonable or malafide. The first Appellate Court rightly observed that the room vacated by one tenant during pendency of the proceeding opens in the chawk of residential house of the plaintiff and thus that room would not meet the requirement of the landlord. One adjoining shop vacated after judgment of the first Appellate Court in itself does not defeat the requirement of the landlord as measurements of each shop is 8'x7' and it was throughout the case of the appellants that space of two suit shops would not be sufficient to carry on computer business. Thus, finding of the first Appellate Court on this point also cannot be termed as perverse in any way. The other grounds that the plaintiff's son Alok Jain had no experience of computer business, that he first joined service in a private company and then he started his won business of cosmetic articles in itself are not sufficient at all to say that the requirement of the landlord was neither reasonable nor bonafide. With regard to comparative hardship and partial eviction, the conclusion drawn by the first Appellate Court are based on material available on the record and reasonings. It was also observed by the first Appellate Court that the appellants have samples of cloths in suitcases and there is no show room in the suit shops and they that the orders after showing the sample to the customers and annual turnover of the appellants is more than Rs. 1 core. It was also observed that other shops are available and thus no comparative hardship would be caused to the tenants in case the decree of eviction is passed. As stated hereinabove, one room behind both the suit shops is with the appellants and one suggestion was given by the Court during submissions made by learned counsel the whether one out of these three adjoining shops would serve the purpose of the appellants. Learned counsel for the appellants submitted that it would not serve their purpose. ;