V.S. Kokje, J. - (1.) Heard Shri A.L. Chopra, learned counsel for the appellant and Shri K.C. Samdaria, learned counsel for the respondents. In this case the sole question to be decided is whether appellant No. 1 Smt. Bhajni Devi and appellant No. 2 Kailashi Devi, widow and widow daughter-in-law of the original tenant Lalchand were entitled to defend the appeal before the First Appellate Court as tenants. It is common ground that if it is proved that these two ladies were carrying on business with Lalchand during his life time, they were entitled to step in his shoes as tenants. The first appellate court after taking evidence on the point has come to the conclusion that it has not been proved that the appellants were carrying on business with the original tenant Lalchand and therefore they are not entitled to defend the appeal as tenants.
(2.) I have gone through the judgment of the first appellate court as also the statements of Smt. Bhajni Devi and Kailashi Devi. On appreciation of these statements the first appellate court has held that they were not carrying on business with Late Lalchand. The first appellate court has also taken into account the fact that the names of these ladies appeared in the electoral roll of Vijay Nagar Constituency which is far away from Bikaner where the tenanted premises are situated. I do not find any reason to come to a different conclusion than that reached by the learned first appellate court.
(3.) Learned counsel for the appellants also submitted that the words 'ordinarily carrying on business" in the provisions do not mean that the appellants should have carried on business sitting in the shop by actually dealing with the business day by day. This may be true, but when the case of the appellants was that they were carrying on business by attending the shop and in no other manner then the question becomes irrelevant. When they have led evidence to show that they were carrying on business by sitting in the shop and that has been found to be not proved, the question whether they could carry business in any other manner by remaining absent from the shop also does not survive. The learned counsel also submits that even deriving benefits from the shop or earning livelihood from the shop without actually taking part in carrying on business would also be covered by the term Ordinarily carrying on business. To my mind these are all hypothetical considerations and when in the facts of the case what was alleged was carrying on business by these ladies by sitting in the shop, no other hypothesis can be gone into by the courts. I find no force in this appeal. It is dismissed. There shall be no order as to costs. Appeal Dismissed.;