x)\\ t V I IN THE HIGHICOURT OF CHHATTISGARH AT BILASPUR sECOND APPEAL No. W6 /2oo4 smile'gench *‘x \/ OND APPEAL UNDER SECTION 100 OF THE CODE OF ClVlL PROCEDURE T AA ’PFLI ANT ,D £FE'NDANT M/s* Sanpariya &I Sons, Through .,‘ . K9 / av\ Bhagidar ]awaharlal Sanpar’iya, S/o. Late Phool Chand Sanpar’iya, Aged about 50'years, R/o. Ambikapur‘, P.S. 8t Tahsil Ambikapur (C.G.) Q§°"T” ’- Q~ Qx°$oé§....""‘.. ‘ *‘ v‘: L VERSUS RESPONDENT ‘ £2 Kailash Kumar Budhiya, S/o. Late /I3’!L!-\ll\l”l'IFF Rameshwar Prasad Budhiya, Aged about 34- years” Occumtion § Businéss/R/o. Sadar Road, P.S. £9: Tahsil Ambikapur, District Surguja (C.G.) HIGH coum or wmwnsamn AT smaruag S.A. No. 466/2004 Appellant Mls Sanpan‘ya r& 8m; Kaitash KumarBudhiya‘ § Rwpondent . shti‘P.K.c.Tiwati~ loamed sr. Gonna! wnh 'shrl MRS. M'forv mafappeltant. ‘ 1 Shri sunii Otwani hamad-oounsctfor- rapondonvcaveilor. (Passed m22.~2-200$ r The Instant sacond‘ ‘ appeal has tan - mod w the appenantldeiendint aguinst mo judymm and merge dutod 28.82004" WW5“MdWomlDlstrlctJudge(FTC)AmbihpmmCMlAppal No 11-1/2004bywhichhejudgmamanddeoreoduad7 1026mm- byAddmomlcwilJudgochsslAmbildapurmcmsmNo 51-N2001‘ hasbeenconfimadandmeordevdekchnemmpasudinfavoww he respondent/plaintiff on mo ground of bona ode mod of oponlng of— i‘ $ depanmenhl stores (Harm the ponies shall b0 uddmsod as gar the descripoon In tho trialcourt) §' lhsnotindispubmmoddemmmhhnmmmesuwd accommodatonofplainhffonmonWyreMdRs 750i ondmagroomonf€ ‘bmiseflectwasoxocutodbotwoo 1 n Case of the plaintiff before the trial Calm was mat mere was a partition of the property between the members of R.P.Budhiya and famityv on 01/05/88 and thereaner as» per thefemily arrangement the suit shop swas given in the shre of the pleintiffend-defendam started paying rent-to ithe plaintiff; Suit was med by tie plaintiff on me ground that he underwent ‘bypass surgery after suffering heart attank and therefore he needed the ‘ suit for opening a departmental store and for that the suit accommodation. had to be repaired which was not possible without being vacated. it is further pleaded mat the defendant No.1 opened a shop styled as Fair Deal shop and started his business there and as such the defendant had: alternative shop in his possession where as the plaintiff required the same ' for bone tide need as he had no other suitable shop, in Ambiltepur town. The tenancy was terminated by loge! notioe and even then the defendant did not vacate the same and as such he was endded to obtain vacant possession of the suit accommodation aiong with the damages. The defendant denied the piaint almons and sated that the ‘ plaintiff has number of shops in Ambikapur town. Ho also denied maths ever opened a new Fair Deai shop as the said shop belonged to his» younger brother, Purushowam. it was also denied tt'msafter partition, the suit shop came into me possession of the plaindff. It was stated m die- i other partners of the hrm were aiso necessary party. it was further pleaded diet me plainh'ff is an advocate and he-tiled the suit on false grounds. On the pleadings of the respective parties, die issues wave framed and the suit was decreed by the trial Court after recording e finding mat the plaintiff required the suit shop for his bone tide need for opentng a . departmental store as except the suit shophe had. no other altermdve suitable accommodation in Ambikapurtown.‘ The hail Court decreed die- suit mording a finding that 61o defendantrhad another shop in Amhikapur ‘ town for his busina as. \ The defendant preferred an appeal before the First Appellate court which was dismissed and the finding of me triaiCourt that the defendant had an alternative shop in Ambikapur town for his business, was set aside. However. the suit has been decreed on he ground that the suit accommodation was required by the plaintiff for his bone hde need of opening a departmental store as he had no other aitemative shop in. t yr Ambiknpur town. Learned Cows below have also haid that thenwas no amer altemative suitable accommodation available to the ‘pwntirfv in § Ambmapur town to: opening a dopanmonun store and the dotendam nod V Eiied to prove that such accommn nation was available to the plolnhlf and he being a heart pattern wanted to quit the legal profesalon and intended to open a departmental store As the ailment of the plairmlf was established. from medical cerliticate of Ex-P.3. both the Gonna below decreed the suit recording a concurrent iinding of fact that the 'plaintitt «h: required the suit accommodation for his bone tide need tot opening a departmental store as he had no other alternadve suitable accommodation available in Amhlkepur town. " Leamed 'oounsel for the appellant challenged the nndings of both the Courts below nrsuy on the ground that the tonenoy was entored into between Mls. R.P.Budhiya and family and the defendant. The suit was med ln the name of Kailash Kumar Budhiya as the owner at he property and partition has been pleaded. To establish this, a tamlly settlement deed has been .nled which in fact is partidon deed and a the partition deed was not regimred, the same could not be taken on reootd. Learned counsel submitted mat the suit was incompetent beemse the other partners ofthe ftrm had not joined in the suit. The objection of the appellant/defendant in thieregard’ has no force‘ as the derendanthas himself admilteol in hiswrttten statement that he was, paying rent to the plaindff as he was member of joint family and on me oasis ot this admission in the written statement are eoieotlon or the defendant about pleadings of partidon also has no force. Leamed counsel for the appellantldefendant- further submitted that the plaintiff has pleadedA-in paragraph 9 at the plaint that hetero opening the departmental store he would have to undertake number of additions ’ and alterations and for that purpose the suit acoommodadon was required to be vacated and thusdte ground for evrotion hken by d'te plainhff is as per Section 12 (1) (h) of the Chhahisgarh Accommodation Gomrol Act. it ls‘ further submided that a’s per the provisions of section 12 (7) of tie chhattisgarh Aooommodatton Control not no ordot tor are eviction or tire tenant could be made on the ground specihed in clause (h) of sub section 1 unless the pians and estimates for such reconstuction have been . properly prepared,’and in the present case no estimate or pten have been wax N, \vW WWW" L 0 ‘ has bsen dealt with elaborately The reievant Mon of me said judgment is reproduced as under W “We have no doubtihat thecmcie! date for deciding as to the bone tides of me requirement of the Iandbrdis the data of his applicadon foraevich'on. The anheedent days may perhaps have utility for his to reach the said oruoiai date of consideration. If every subsequent development during the post petition period‘is-to be-teken into account for judging the bone tides of the requirement pleaded by therlandlord'there would perhaps be no end so long as the unioriunte situation in our lldgative slow-process system suhsiats. During 23 years, after the landlord moved for eviction on the ground mat his son needed die building neither die lendiord' I nor his son is expected to remain idle without doing any work lest joining any new assignment or starting any newt work would be at the peril of forfeihng his requirement to» occupy the burldmg lt is a stark reality that die longer is the life of the lidgation the more would be die number of' developmens sprouting up durim the interregnum, if a V young entrepremur deem to launch a new enterpriseand' onthatgroundheorhisfatherseeksevicdonofatenant" from the bmldnm the proposed enterprise would not get faded out by subsequent developmem dunng tho traditionai lengthy longevrtyoftheiihgadon Hisneed maygetdusied patina might stick on Its suriaoe, nonetheless he need would - remalnrntact Aiidiatisneededistoerasethepedna and seethegloss ltepemrowusmndwemaysay. uruustto shutthedoorbefore an applroantjustontheeveofhis reaching the hnaie atter passing through all the prevbus levels of the litigation merely on the ground that certain developments occurred pendent elite beeause the oppodte u party succeeded in prolonging the matter for such unduiy long period [6A Thevptea of res indicate has been raised for he first time in the memo of appeal andvsubstantial question of lawhas been proposed? On the basis of statement of thepiaintiff on oath no further documents have men flied by the appellant/defendant in this regard to demonstratethat the issue involved in the fonner suit was materiellydiesame and between the same parties; 0n the aforesaid analysis, i am of the opinion that‘the'cencurreniv findings of the fact recorded by, bodt the courts below are based} on' detailed and objective analysis cf-evidence available on record and no- substantiai question of law is invoived for adiudioationvof the appeal; r r H‘g