GUPTA, J. - (1.) THIS is a defendant's appeal, in a suit for eviction, decreed by both the learned courts below, on the ground of reasonable and bonafide necessity.
(2.) THE facts of the case are, that the plaintiff filed the present suit for eviction, alleging interalia, that the property described in para-1 of the plaint belonged to one Hastimal. This comprises of two shops on the ground floor, being shops No. 2 and 3, which were purchased along with second storey, by the plaintiff, and the first storey was purchased by the plaintiffs father, from said Hastimal, by separate registered sale deeds. Both the shops belong to plaintiff, the first storey is of the ownership of the plaintiff's father, while the second storey is in the ownership of plaintiffs, and that plaintiff and his father live in the upper storey, above the two shops. With this it was alleged, that the defendant had become defaulter, as he had taken the shop on rent at a monthly rent of Rs. 125/-, and had paid rent upto 30. 9. 1990. THE plaintiff's father is aged 65 years, and is a cardiac patient, having blood pressure also. Earlier the father was carrying on business in the name and style of M/s. Ganeshmal Bhanwarlal, in the premises of plaintiff uncle's son Narpat Chand. That firm has been closed, and the premises have been handed over to Narpatchand, since 31. 3. 93. THEreafter the plaintiff's father started cloth business in the name and style of M/s. Bhanwarlal Dhanpatraj, as sole proprietor, in another shop at Katla, on the first story, as he could not get any other shop. While that shop is not in any manner suitable, looking to the old age, and cardiac ailments of the plaintiff's father, and it is a consistent health hazard to the plaintiff's father. According to the plaintiff, the suit shops have no wall in between, are practically one shop, are most convenient, and appropriate, for plaintiff's father's business, as he lives in this very building, and will not have to climb stairs, and will be assisted by the family members, as well, the plaintiff's father has sufficient experience. In view of the present shop being on the first floor, customers cannot approach conveniently. THE factor of distance between shop, where the plaintiff's father is carrying on business, and the residence, was also pleaded. It was pleaded, that it would be convenient, more so when, the defendant's house is at a distance of 8 Kms. Interalia with this, a decree for eviction was prayed. The defendant filed the written statement on 12. 9. 1995, contesting the suit. The plaintiff and his father having purchased upper stories, was denied, for want of knowledge. The fact about the shops having been purchased by the plaintiff was admitted. It was admitted that on the upper story above shops No. 2 and 3, the plaintiff and his father resides. Then, allegation of default was denied. It was pleaded that after September, 1990 rent was offered, but the plaintiff did not willfully receive, rather exerted pressure to increase rent to Rs. 700/ -. Then, it was sent by money order also, which were refused to be received. It was pleaded, that there is a sub-meter, but the defendant has obtained a separate mater, and separate electricity connection. Therefore, there was no question of payment of any electricity charges. Then, regarding bonafide necessity, it was denied that plaintiff's father is having any heart ailment, and therefore any requirement was denied. It was denied that plaintiff's father was earlier carrying on partnership business in the name and style of M/s. Ganeshmal Bhanwarlal in the shop of Narpatchand, or that firm has been closed, and the possession of the premises had been redelivered to Narpatchand. It was also denied, that the plaintiff has started fresh cloth business in the name and style of M/s. Bhanwarlal Dhanpatraj, as a sole proprietor, for want of knowledge. The allegation about plaintiff's father having not got any other shop, or the shop where he is carrying on business is not appropriate, or was suffering from any heart ailment, so as not to be able to carry on business on the first floor, were all denied as baseless. It was contended, that as a matter of fact the plaintiff's father does not require suit shop, and that plaintiff's father is carrying on whole sale business in the main market, which is a whole sale cloth mandi in Jodhpur, and business is going on very well. It was then denied, that plaintiff's father has any requirement of the suit shop. Likewise, pleading about comparative hardship was also denied. It was also pleaded, that the plaintiff's father has many servants in the shop, while the defendant is carrying on business in the suit shop for the last about 20 years, and the defendant lives in the housing board, and cannot get any other shop. It was also pleaded, that the plaintiff's father is earning lacks of rupees every year. It was contended, that the plaintiff does not require the suit shop, and his father lives separately from the plaintiff's family, and has separate business in the main market Jodhpur, itself. Thus the plaintiff's father does not have any reasonable and bonafide necessity of the suit shop. Inter-alia with these pleadings, it was prayed, that the suit be dismissed. The learned trial Court decided all the four issues, relating to default, reasonable and bonafide necessity comparative hardship, and partial eviction, against the defendant. It was inter-alia found, that even according to the defendant, the shop in which the plaintiff's father carries on business, measures about 10 x 25 ft, while the suit shops collectively measure 14 x 10 ft. , and thus, the reasonable and bonafide necessity of the plaintiff's father was found to be proved, and accordingly the suit was decreed. The learned lower Appellate Court upheld these findings. It was contended before the learned lower Appellate Court, that it has nowhere been the allegation of the plaintiff, that the plaintiff's father is a member of him family, nor any issue in this regard has been framed, nor any finding has been given by the learned trial Court, while even according to para-2 of the plaint, it is clear, that the plaintiff and his father owns separate property, on different floors, and according to para-6, the plaintiff's father was earlier carrying on business in partnership, while now he is carrying on business in sole proprietorship. It was also contended, that ordinarily the expression "family" means, spouse and children, and thus, the learned trial Court was in error in passing the decree, treating the plaintiff's father to be a member of his family, and on account of his requirement. It was also contended, that it was required for the plaintiff, to specifically plead and prove, that his father is member of his family; while on the side of the plaintiff, it was contended, that only sum and substance of the facts is required to be pleaded, and the defendant is also required to plead all his facts, on the basis of which suit can be dismissed, but the defendant has nowhere pleaded, that the plaintiff's father was not a member of his family, and merely because plaintiff and his father separately owned property, and have separate business, it cannot be said, that they constitute different families. Couple of judgments were cited on either side, and the learned lower Appellate Court found, that it is nowhere pleaded in the written statement, that the suit cannot be maintained on the basis of the requirement of the plaintiff's father, because plaintiff's father is not member of his family, while according to the judgment cited on behalf of the plaintiff, ordinarily father and son shall be taken to be member of the same family, and therefore, till the defendant proves, that the plaintiff's father was not member of his family, it cannot be said, that there is any error in decreeing the suit, for the requirement of plaintiff's father. Then after considering the material on record, the findings on issue No. 2, 3 and 4 were upheld and thus, the appeal was dismissed. Assailing the impugned judgment, the only contention raised was, that Bhanwar Lal cannot be said to be member of plaintiff's family, nor has it been so pleaded by the plaintiff, and since under Section 13 (1) (h) of the Rajasthan Premises (Control of Rent & Eviction) Act, hereafter referred to as the Act, the decree for eviction can be prayed only on account of reasonable and bonafide necessity of plaintiff, for himself, or for any member of his family, and the language of Section 13 (1) (h) does not contemplate entitlement of the plaintiff to claim eviction on the ground of reasonable and bonafide necessity of any of the relatives of the plaintiff, therefore the impugned decree is bad. Reliance was placed on the judgment of Hon'ble the Supreme Court, in Roshan Lal & Anr. vs. Madan Lal & Ors. , reported in 1975 (2) SCC 785, and the judgment of this Court, in Radhavallabh vs. Darmodardas, reported in 1964 RLW 587, another judgment of Hon'ble Supreme Court in K. V. Muthu vs. Angamuthu Ammal reported in (1997) 3 SCC 53, Deoki Nandan vs. Murlidhar & Ors. , reported in AIR 1957 SC 133, Joginder Pal vs. Naval Kishore Behal, reported in 2002 (5) SC 397, Hardev vs. Jaidev through his legal representatives, reported in 2000 (3) RLR 240 = (RLW 2000 (1) Raj. 407), and Baldev Sahai Banghia vs. R. C. Bhasin, reported in AIR 1982 SC 1091, and it was contended, that since on the face of it rather admittedly the plaintiff and his father separately own property, have separate business, and have separate income, they cannot be said to be constituting one family, nor can Bhanwar Lal be said to be member of plaintiff's family.
(3.) LEARNED counsel for the respondent, on the other hand contended, that in para-3 of the written statement, the defendant has admitted, that the plaintiff's father lives with the plaintiff, and there is no material on record to show, in the pleadings, or in the evidence, that the plaintiff's father is not a member of the plaintiff's family. Then it was pointed out, that in the judgment of Hon'ble the Supreme Court in Hardev's case, father has also been shown to be included in the family. I have considered the submissions. To start with I may make it clear, that in view of the submissions made by the learned counsel for the parties, this much, at least, is clear, that the question about the requirement of the shop by Bhanwar Lal, the aspects of comparative hardship, and partial eviction, are no more under challenge, and the challenge is only to the effect, that the plaintiff could not maintain suit for eviction, on the ground of requirement of his father, as father cannot be said to be member of the family of the plaintiff, and therefore, it cannot be said, that the premises are required, reasonably and bonafide, by the plaintiff, for his own use and occupation, or for the use and occupation of any member of his family. Obviously the expression "family" has not been defined under the Act. On the side of the appellant, reference was made to para-7 of the written statement, Wherein it was pleaded, that plaintiff's father Bhanwar Lal lives separately from the plaintiff's family, and carries on business separately, while the learned counsel for the respondent referred to para-3 of the written statement, wherein the defendant had admitted, that on the storey above the suit shop, the plaintiff and his father live. ;