SHARMA, J. - (1.) THIS is a tenant's second appeal against the judgment and decree dated February 12, 2001 of the Additional District Judge No. 9 Jaipur City whereby the Lordship's first appeal was allowed, judgment and decree dated August, 16, 1996 of the Additional Civil Judge (Senior Division) No. 5 Jaipur City were set aside and landlord's suit for ejectment of tenanted shop was decreed.
(2.) CONTEXTUAL facts depict that the plaintiff landlord (for short landlord) let out the shop in question to the defendant tenant (for shot tenant) on July 1, 1978 at monthly rent of Rs. 120/ -. The rent was increased to Rs. 150/- on January 1, 1982. The landlord on July 17, 1986 filed a suit for eviction and arrears of rent with the averments that the tenant had neither paid nor tendered the rent since April 1, 1985. It was further pleaded that shop was reasonably and bonafidely required for Dinesh Kumar, the son of land lord who had completed his graduation and if the shop was not vacated the landlord would suffer more hardship in comparison to the tenant. The landlord also pleaded that the tenant, after consuming liquor every day used to create nuisance. The tenant in the written statement traversed the allegations. It was averred that the landlord did not require the shop since the already had 4 shops out of which two shops had been got vacated and were lying vacant. The tenant who had five daughters and two sons was only earning member and he had no other source of income. It was also pleaded that the tenant neither committed default in payment of rent nor created nuisance. The land lord filed rejoinder reiterating the facts pleaded in plaint. Out of nine issues framed, issue No. 1 related to default in payment of rent, whereas issue No. 2 was with regard to reasonable and bonafide necessity, issue No. 5 related to partial eviction and issue No. 6 related to nuisance. Four witnesses were examined by the landlord and six by the tenant. Learned trial court decided these issues against the landlord and dismissed the suit. However first appellate court reversed the findings of issues relating to reasonable bonafide necessity and partial eviction and decreed the suit. Reversal finding arrived at by the first appellate court raises following substantial questions of law- (i) Whether in a situation where every member of the landlord family has business of his/her own, suffer greater hardship compared to an alone bread earner (Barber) looking after a family of 11 members? (ii) Whether the bonafide necessity of a shop for the son of the landlord would not be met by eviction of two other shops got vacated subsequent to filing of the suit? (iii) Whether finding on the ground of bonafide requirement the comparative hardship is based on misreading of Ex. A/7? It is well settled that the first appellate court is competent to reverse a finding of fact arrived at by the trial Court if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises. The first appellate court must however assign its own reasons for arriving at a different finding. Having scanned the material on record we notice that landlord Badri Narain (PW. 1) in his cross examination admitted that two shops admeasuring 6' x 13' and 3' x 8' which were let out to Radio mechanic and tailor, got by him vacated during the pendency of the suit and in those shops his elder son Suresh was carrying on his business. According to land lord the size of the shop in question in which the tenant has been running saloon, is 8' x 8'. The witnesses examined by the land lord viz. Dinesh Kumar (PW. 2) Ram Lal (PW. 3) and Ramesh Vyas (PW. 4) also admitted this fact in their cross examination that after institution of the suit for eviction against the tenant, the land lord had acquired possession of two shops. Landlord Badri Narain (PW. 1) also admitted that he also owned two vacant rooms, doors of which open towards the road. Learned trial court after considering the evidence decided issue No. 2 against the landlord and held that the shop in question was not reasonably and bonafidely required by the landlord. Issues No. 3 and 5 relating to comparative hardship and partial eviction were also decided against the landlord.
(3.) DURING the pendency of first appeal Landlord's son Dinesh Kumar passed LL. B. and on September 14, 1988 got himself registered as an Advocate with Bar Council of Rajasthan. The landlord in his affidavit accepted that Dinesh Kumar was enrolled with Bar Council of Rajasthan but stated that he was not interested in practice of law. Dinesh Kumar also furnished undertaking that as and when the shop in dispute gets vacated he would get his enrollment with the Bar Council cancelled and start the work of hosiery and stationery. Learned first appellate court in the impugned judgment observed as under- (i) Tenanted shop was let out in 1978 only for eleven months and Dinesh, the son of land lord, for whom the shop is required has been sitting idle despite being enrolled as an Advocate in 1988. Had the shop been not required by him, he would have started the profession of advocacy. In such a situation it can not be said that requirement is not reasonable and bonafide. (ii) Finding recorded by the trial court is against the record of the case. The witnesses examined by the tenant themselves deposed that the shops that were vacated during the pendency of the suit were small shops and the landlord converted them in one shop and after installation of cabin, it became congested. (iii) Landlord can not be compelled to ask his son Dinesh to start his business in any other accommodation. (iv) Tenant could easily get shop on rent in the same vicinity. I have heard learned counsel for the parties. ;