^ ?fc? <^~ IN THE HIGHCOURT OFJUDICATURE AT BILASPUR CHATTISGARH S.ANo. go /2005 ^APPELLANT/: DEFENDANT Firoz Ahmed, S/o Abdul Qarim Aged40Years, Magarpara, Tehsil Bilaspur District Bilaspur (C.G) VERSUS ^ESPONDENT/: PLAINTIFF f ^.^ ^',Y^amashankarYadav, S/o ^^s^c ;- ?ged62?ea:s. ... ....••••t':^..^"^'.....^""' Retired A. M Quality Control, ^ ' Z^iv< ^-^''^-O ^ Magarpara, Tehsil Bilaspur ^^.^^C^ Disfrici Bilaspur (C.G) ,^ SECOND APPEAL I^SIOO OF CQDE OF CIVIL PRQCEDURE 1908 Appdtant/ Defendant HGH COURT OF O+IATnSGARK Sinale Bench:- Hon'ble Second Appeal No.80 crf 2005 :- Rroz Ahmed Vs Respondent/ Raintiff ^" Ramashsuikar Yadav Appellant by Shri Vimlesh Bajpai, Advocate. JUDGEMENT (Delivered onS/04/2005) .^ Heard on admission. 2. The appellant/defendant herein has preferred this seoond appeal as he is aggrieved by the impugned judgement and decree dated 30.10.2004 passed in Civil Appeal No. 41-A/2004 by Xth A.DJ. (Fast Track Court), Bilaspur and by which the judgement and decree for eviction dated 30.11.2002 passed jn Civil Suit No. 55-A/2001 by JVth Civil Judge, Class- II, Bilaspur has b©enconfirmed. (Parties herQinafter shati be described as per their description in the trial Court). 3. The case of the plaintrff before the trial Court was that the suit shop in question was let on rent by his father on a monthly rent of Rs.250/- to the appellant/defendant. The rent was subsequently enhanced to Rs.300/- per month. After death of the father of the plaintiff, the plaintiff being the alone successor of his father inherited the property jn the year 1991 and since then he is in possession of the property. The suit shop was taken by the defendant on rent for the purposes of Radio and T.V. recording business. The piaintiff was earlier Dy. Manager, Quality Controller in Balco who retired on 30.06.1997. It is further pteaded bythe plaintiffthat earlier he fried a suit for ejectment on 04.08.1993 which was registered as Civil Suit No. 7-A/1993 in the Court of Ilnd Civil Judge, Class-l, Bilaspur on the ground that he needs the sutt shop for opening Hardware shop of his own as he is taking voluntary retirement. However, the suit was dismissed (g) 5. 6. on the ground that the plaintiff had not taken voluntary retirement. The plaintiff eariier also preferred a regular civil appeal against the dismissal of the suit for eviction and for this he had also moved an application under Order 41 Rule 27 of the C.P.C. for permission to file documents at the appellate stage and along with this application he filed a document showing that he has been retired from his services with effect from 30.06.1997. However, the apptication filed under Order 41 Rule 27ofthe C.P.C. by the plaintiff as also the appeat preferred by tho plaintiff was dismissed by the lower appellate Court vide order dated 2" August 1999. After the djsmissal of the appeai, the plaintiff has filed the instant suit for eviction on the ground that he is the owner of the suit shop which has been given on a monthly rent of Rs.300/- to the defendant for the purposes of business and after retirement, the plaintiff bonafidely requires the suit shop for opening of Hardware shop as he has to look after the large family consisting of his mother, wife, children, uncle and aunty and further that he has no other reasonably suitable altemath/e accommodation available in the Bilaspur corporation area for the said business and the shop in question is sujtable for his business. It is pleaded by the ptaintiff that the defendant did not vacate the suit premises even after notice and therefore damages at the rate of Rs.1,500/- per month was also claimed by the plajntiff as the prevalling mari<et rate in the area for such shop is Rs.1,500/- per month. That, the defendant denied the averments of the plaint and also denied that the plaintiff requires the suit accommodation bonafidely for opening of his business. It was further pleaded that the eariier suit filed by the plaintiff against the defendant for eviction from the suit premises for the same purpose has been rejected and even the appeal of the plaintiff has been dismissed and as such the suit is barred by law of res judicata. The bonafide necessity was also denied and it was pleaded that the plaintiff has been in possession of suitable alternative accommodation and therefore, the suit of the plaintiff deserves to be dismlssed as the same has been fileci with a view to extract enhanced rent. On the basis of the pleadings of the respecth^e parties, issues were framed by the trial Court and the trial Court decreed the suit by recording a finding that the plaintiff requjres the suit accommodation described in schedule 'A' of the plaint bonafidely for his business and he does not have any reasonably suitable alternative accommodation for the above purposes jn the Bilaspur corporation area and the suit is not barred by doctrine of res judicata, However, the claim of damages at the rate of Rs.1,500/-per month has been held to be not proved and accordingly, a decree of eviction and damages at the rate of Rs.1,000/- per month from the date of judgment till the date of handing over the vacant possessjon of the suft accommodation to the plamtiff has been passed. The appea< of the appellant was also dismissed by tho lower appeHato Court. 7. That, the judgment of the trial Court is based on the finding that the suit is not barred by doctrine of res judicata as the earlier suit was fited on the ground of bonafide necessity and non-payment of rent. However, as the pjaintiff could not prove the bonafide necessity, the suit was dismissed. Now, after retirement on the ground of bonafide necessity the suit has been filed and therefore, the instant suit is based on different cause of action and as such the suit is not barred by law of res judicata. The trial Court has also recorded a finding that the suit accommodatjon is required bonafidely by the plaintiff for the purposes of opening Hardware shop as after retirement, he needs the same bonafidely for livelihood of his famity members and he does not have any alternative suitable accommodation in his possession in the Bilaspur town. Thus, on the basis of the analysis of the evidence and material available on record, the trtal Court decreed the suft in favour of the ptaintiff and the judgment and decree passed by the trial Court has been subsequently confirmed by the first Appetlate Court after deating with the material and evidence available on record. 8. Learned counsel for the appellant/defendant submits that both the Courts below have erred in holding that the suit is maintainable and the earlier dismjssal of the suit for eviction preferred by the plajntiff does not constitute res judicata. Learned counsel submits that the earlier suit was also preferred by the plaintiff against the defendant for eviotion from the same suit house on the ground of bonafide necessity for his own business under Section 12 (1) (f) of the Accommodatton Control Act, which was dismissed by the trial Court and the same was subsequently dismissed by the first Appellate Court even after the appellant stood retired and therefore, the instant sutt between the same parties for the same relief and on the same ground is not maintajnable on the ground of res judicata. (£> 9. I have heard learned counsel for the appellant and have gone through the pleadings ofthe eariier suit and findings of both the Courts below. 10. The eariier suit was dismissed by the trial Court only on the ground that the plaintiff of that suit had filed the suit for evjction on the ground that he shall be taking voluntary retirement. However, no evidence was adduced by the plaintiff that he stood retired and on this ground, the bonafide necessity was heid to be not proved and accordingiy, the suit was dismissed. The appeal was also dismiissed as the plaintiff had failed to ©stablishthat he had retired from his services and as such he needed the suit premises bonafidely for opening of his business. But, in the present case the suit has been filed on the ground that the plajntiff is a retired person who needs the suit premlses bonafldely for opening hls shop and he does not have any reasonably suitable atternath/e accommodation available m Bilaspur corporation area. 11- Thus, from perusal of the pfeadings of both the suits, it is clear that the cause of action in both the suits is different as in the present case, the ground taken by the plaintiff is that he has retired from his ser/ices on 30.06.1997 whereas the earlier suit was ffled on the pleading that he shall be taking voluntary retirement after getting vacant possession of the suit premises. 12. In the aforesaid circumstances, l am of the opinion that the instant appeal has no merit and the jucfgment and finding of the earlier round of trial between the parties does not constitute res judicata and the above concurrent findings of facts of both the Courts below that the plaintiff after retirement requires the suit shop bonafidely for the purposes of opening his business and that he does not have any reasonably suitable alternative accommodation in his possession in Bitaspur town, are based on the objective analysis of the material and evidence avajlable on record and the same does not call for any interference in the second appellate stage. Therefore, the instant second appeal has no merits and H: does not involve any substantial question of law for its adjudication and the same deserves to be dismissed at the motion stage itself and it is dismissed accordingly. 13. However, there shall be no order as to costs. Sd/- Dhirendra Mishra Judge ^