IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T LAXMAN SINGH Vs. VISHNUGOPAL S.B.CIVIL SECOND APPEAL No.164 of 2006 Date of judgment : 09 October,2006 PRESENT HON'BLE SHRI N P GUPTA,J. Mr. M.C.Bhoot, for the appellant. Dr. Sachin Acharya, for the respondent. BY THE COURT: This second appeal has been filed by the defendant, against the decree for eviction, passed by both the learned courts below on the ground of material alteration, and reasonable and bonafide necessity of the plaintiff for his son, and also by deciding the aspect of comparative hardship, and partial eviction, against the appellant. The facts of the case are that the plaintiff respondent filed a suit for eviction, alleging interalia, that the plot described in para-1 of the plaint, being situated near Alka Hotel, Alka Road, Udaipur, was let out to the defendant at the monthly rent of Rs. 200/- on 1.9.1983. It was alleged that the tenancy was oral. However, thereafter Kabuliyat was executed. According to the plaintiff, his son Ashish is unemployed, and plaintiff is also going to retire shortly, therefore, the plaintiff requires the suit premises, reasonable and bonafide for himself and his son, for establishing a good hotel, as hotel industry is flourishing in Udaipur, and the suit plot is quite size-able. It is also alleged, that the plaintiff has submitted necessary plan to the Municipality, and has financial resources as well. It was alleged, that the defendant carries on a workshop of repairs, which is a small business, and can be carried out anywhere, while the plaintiff and his son would remain jobless. Thus, comparative hardship was pleaded in favour of the plaintiff. Then, it was further pleaded, that the defendant, without permission of the plaintiff, has started construction over the plot, and is doing material alteration thereon, with the result, that the demised property, instead of remaining a plot, would become a residential premises, and the good counseling advanced by the plaintiff and his son did not yield any result, rather the plaintiff and his son were manhandled and misbehaved. According to the plaintiff a notice determining tenancy was given on 17.3.93, but to no good. Then, giving details of material alteration, it was pleaded in para-8 of the plaint, that on the south eastern part of the plot, the 2 defendant expressed intention to erect a wall, to cover it, and construct a Pucca house, for which he has already erected a wall, and towards the east, walls have been erected, on the three sides and a small room has been erected. Then, towards the north, he has made wholes in the plaintiff's other shops, so as to rest iron angle, and thereon tin shed has been put. Then, the entrance gate has been moved forward, and the hood of the plaintiff's other shop, and other projections of all these shops, have been demolished, and the board, in the name of “Bharat Tractors” has been placed. To the plaintiff it appears, that the defendant wants to sublet the premises, and change the nature of his business, and is also likely to change the name of the firm, like Lucky Trackers or the like. Interalia with these allegations, the decree for eviction was prayed for, on the ground of reasonable and bonafide necessity, material alteration, and attempted subletting. The defendant filed duly amended written statement on 26.2.1999. The case of the defendant is, that the premises was taken on rent for the first time in June, 1969 at a monthly rent of Rs. 121/-, in the name of Bharat Tractors & Machineries, for carrying on repairs, and sale of spare parts of tractors, and since then the defendant is in possession as tenant, and at that time itself it was mutually agreed, that for workshop a shed shall be constructed. Likewise, for office and storage of spare- 3 parts, and for display thereof, room shall be constructed, and accordingly the construction was raised at that time itself, and within the knowledge of the plaintiff. According to the defendant, at the time, when he took the premises on rent, the plot was on rent with Asgar Ali at a monthly rent of Rs. 100/-, and the defendant was inducted at a monthly rent of Rs. 121/-, on the condition of his pleasing Asgar Ali, and taking possession. Accordingly the defendant paid Rs. 3725/- to Asgar Ali, and took possession on 5.6.69, and thereafter the construction of tin shed and office were raised, and on 20.10.69, i.e. Dashahara the functioning of the workshop was inaugurated. It was pleaded that the plot was taken on rent for establishing a workshop, and other connected business, for which shed was constructed to protect the machinery and parts from vagaries of weather, which was in the knowledge of the plaintiff, since beginning. Then, in the alternative it was pleaded, that since beginning the construction is there but the plaintiff never raised any objection, rather rent was increased twice. Thus, it is not open to the plaintiff to claim eviction on that ground. In June, 1969 the rent was Rs. 121/-. Thereafter it was increased to Rs. 140/- in August, 1978, and then it was increased to Rs. 200/- since September, 1983. Thus, it is wrong to contend, that the plot was initially taken on rent in September, 1983. Concealing all these facts the plaintiff has taken stand mixing truth and falsehood, about having got executed fresh 4 rent note with increasing rent. Then, denying bonafide necessity, it was pleaded, that the plaintiff is on a lucrative post, and his son is carrying on property dealing business, and is thereby earning very good income. Thus, the plaintiff has no reasonable and bonafide necessity. It was pleaded, that of course Udaipur is a tourist place, but number of hotels, disproportionately exceeded, rather hotel industry is struggling hard for existence, apart from the fact that plaintiff or his son has not obtained any education in this regard, nor have any experience. Then, it was pleaded, that recently the plaintiff has sold many immovable properties, which he would not have sold, had he intended to set up the hotel business. That apart the plaintiff also has a big plot of land in his possession, which he is intending to sell off to Jain Samaj. That plot is of much bigger size, and is better located, being situated on the main high way, and not using that plot shows, that the alleged necessity is neither reasonable, nor bonafide. Denying comparative hardship it was pleaded, that the defendant's establishment is of course small, if compared to Tata and Birla Groups, otherwise it is reasonably big one, and has good market reputation, he is running the workshop there for the last 35 years, and has acquired good will, which will be lost on being evicted, and since the defendant has no other means of livelihood, he would be rendered without means. As against which, if the plaintiff at all wants, or wanted, to establish any 5 hotel, he could very well use the land available with him. It was denied that the defendant is changing the use of premises or is converting it into residential one. According to the defendant the allegations of intended constructions are vague, apart from the fact that the defendant has neither raised any new construction, nor does he propose to raise any new construction. The allegation of misbehavior and manhandling were also denied. It was then pleaded, that whatever construction has been raised, was raised at that time when the premises were taken, and for the purpose for which it was taken, and within the knowledge of the plaintiff, the construction raised is neither permanent, nor has it caused any damage to the property, nor resulted into any material alteration, and that he has not raised any new construction. It was pleaded that the plaintiff time and again wanted to raise rent to Rs. 1000/- per month, and since the defendant declined, the suit has been filed. The plaintiff filed two rejoinders one on 23.12.1994, to the original written statement, and other on 23.4.1999, to the amended written statement. It was pleaded that the defendant had executed a rent note as Kabuliyat on 1.9.83, which was filed along with plaint, and which constitutes part of the pleading, and that by denying such document, the defendant loses right to defend. It was denied that it was ever agreed, that the defendant could 6 raise construction on workshop etc., rather from the Kabuliyat dt. 1.9.83, it is clear, that there was no such stipulation, and any stipulation contrary to written document cannot be considered. In the Kabuliyat it is clearly mentioned, that the plot was taken on rent. It was also pleaded, that on execution of the new agreement, all old agreement came to an end. The plaintiff never gave any permission to raise any construction, and that the defendant had taken the premises for a short term, as mechanic, to repair the vehicles, and shortly he would purchase a plot, and vacate, and now he is pressing the plaintiff to sale the plot in question at a throw away price. It was pleaded, that the plaintiff has already retired on 31.5.94, and that the son is not busy in property dealing business, rather for running hotel business the suit premises is required reasonable and bonafide, the defendant can very well shift his business to Transport Nagar, or such place where such businesses are carried on. It was denied that the plaintiff has in his possession any other plot, rather the front portion land is more suitable for business, and the plaintiff wants to establish hotel on the suit premises. It was also denied that the defendant has not raised any new construction, rather few days ago itself, the defendant had demolished the parapet, and installed a board of M/s. Bharat Tractors & Machineries, and thereafter of Lucky Tractors, and thereafter of Bharat Spares & Engine Services, and had 7 moved the entrance gate, and has done all this without the permission of the landlord. Then, in the rejoinder dt. 23.4.1999 it was pleaded, that when in Kabuliyat dt.1.9.83, there was no tin shed, or any other construction, it is not open to the defendant to contend, that he raised construction in the year 1969 itself, and production of accounts and receipts shows a wrong state of affairs, on the face of recitals in the written statement. On these pleadings the learned trial court framed four issues. The first issue was regarding plaintiff's reasonable and bonafide necessity, second issue related to comparative hardship, while the third issue related to material alteration, by erecting tin shed, angles, and walls etc. The learned trial court, deciding issue no. 1 found, that the plaintiff has established reasonable and bonafide necessity of the suit premises for himself and his son, for setting up hotel business. While coming to this conclusion it was considered, that the plaintiff has shown requirement for setting up hotel, and notice was given in March, 1993, which was replied by contending that the plaintiff's son is a property dealer. Thereafter the plaintiff has clearly alleged to be shortly retiring, and to be needing the premises, and having applied for premises to construct the hotel, and has taken steps for taking loan 8 as well. On the other hand, according to the defendant the suit has been filed with the intention to increase the rent as Rs. 1000/-, and the plaintiff has no reasonable and bonafide necessity. Then, it was found that from Ex. 8 it is clear that the letter was written by Municipality. Then, it was considered that from the entire evidence, it does not transpire, that the plaintiff's son is carrying on property dealing business, rather the defendant has deposed ignorance about various details, and has not deposed a word about the plaintiff's intention, in filing the suit to be, to enhance the rent to Rs. 1000/-. Likewise the alternative land shown, clearly appear to be of residential nature, and the plaintiff having retired, has no other occupation, and that the suit land is situated at the place where there are many hotels, and is aptly suited for hotel business. Then, deciding issue no.2 it was found, that the plaintiffs are unemployed, while the defendant, even according to himself, has good financial condition, and the defendant has also admitted that good hotels can function on the suit premises, and the defendant's son Kedar Singh has admitted, that the land has been purchased by B.S.E.S. India Pvt. Ltd. of which the defendant, his son, and Ranjit Singh are directors, which land measures 23000 sq. ft., and that the suit land measures 3000 sq. ft. only, which is not suitable for partial eviction, as this much land is needed for hotel and parking. Thus, this issue was decided in 9 favour of the plaintiff. Then, deciding issue no.3, it was considered, that from the evidence led on the side of both the parties, it is clear, that the defendant has materially altered the premises, and that when the defendant admits his signature on the rent note Ex.-1, the recognition and conditions contained in Ex.-1 do not comes to an end, and on the face of the rent note it has to be accepted that had the defendant raised construction with permission of the landlord, it would have been mentioned in the rent note of 1983. Thus, it is clear that the defendant is guilty of material alteration. Consequently, the suit was decreed. In appeal, assailing the findings of the learned trial court on issue no.1, it was contended, that the plaintiff has 10000 sq. ft. of land adjoining his residence, which is more convenient, and could be used, and that has not been considered by the learned trial court. Likewise, he has sold other land to Rose Jute Trading & Co., in the year 1997. Thus, it cannot be said that the plaintiff has reasonable and bonafide necessity. The learned lower Appellate Court considered the evidence led on either side, and noticed, that the defendant has deposed ignorance about the details of property dealing transactions of the plaintiff's son, and the defendant, in cross-examination has admitted, that in the line of the 10 plot in question there are many hotels, and therefore, hotel can very well run on this land, and that it is established from evidence, that in the vicinity there are hotels named Alka, Ankur and Prince, apart from Tourist Bungalow, and that the plaintiff is the best judge of his requirement, and simply because he has sold certain land, it cannot be said that the plaintiff does not have reasonable and bonafide necessity. Then, the oblique motive pleaded by the defendant about the plaintiff's intention to enhance the rent, has been disbelieved on account of defendant having not deposed anything in this regard. Then, the defendant having acquired alternative land on 2.12.95 was considered, and thus the finding on issue no. 1 was upheld. Then, regarding issue no.2 it was contended by the defendant, that the defendant has no other land or premises, apart from the fact, that even if the defendant has any other land, that consideration applies only in case of residential accommodation, and not the commercial ones. Learned lower Appellate Court considered the submissions, and found, that the defendant has admitted to be of sound financial condition, capable of purchasing big plot of land, and that it has been established on record, that vide Ex. 15 and 16, the defendant had purchased two very big plots of land. Thus, the finding of the learned trial court on issue no. 2 was affirmed. 11 Then, assailing the finding on issue no. 3, it was contended, that at the time of taking premises on rent in the year 1969, walls were there on three sides, and putting tin shed thereon does not amount to permanent construction, and that the plaintiff had permitted to place the tin shed. It was also contended, that at the time of taking on rent, walls of the toilet, and walls of the room for storage of spare parts, already existed, but walls of toilet have only been covered by putting stone slabs, and store room had been covered by asbestos sheet, while the workshop has been covered by putting tin shed on iron angles, which does not amount to material alteration, apart from the fact, that the plaintiff, thereafter, by receiving rent, has waived his right to complain against such construction. The learned lower Appellate Court considered the plaintiff's admission, that the plot was let out to Laxman Singh and Doongarwal in the year 1969, and since then the tractor repair work is going on, while according to the defendant he took the premises in the year 1969, and erected the shed, for which he talked to the plaintiff, and the plaintiff gave out, that the defendant may do anything as he likes, but then he will not bear the expenses, and would take the plot as it is being given. Then, in July he started construction work wherein the room for spare parts, one room for office, one latrine, one bathroom, and one shed for tractor repair was constructed. This construction 12 was completed in September, and the plaintiff did not raise any objection prior to filing of suit. After considering this evidence, it has been found, that the earlier rent note was in the name of Sri Chand, who was partner, but the rent note by the defendant is of 1.9.83, and the defendant is bound by the recitals of rent note Ex. 1, which clearly recites the property to be plot having no roof, and therefore, it has to be assumed, that the construction has been raised only after 1983, and since the construction as admitted by the defendant is of permanent nature, it does amount to material alteration, and since there is no reliable evidence to show, that this construction was raised with the plaintiff's permission, it does amount to material alteration. Thus, the finding of learned trial court, was affirmed. Then, the finding on question of partial eviction, as recorded by the learned trial court was also affirmed. In the result the appeal was dismissed. Assailing the impugned judgments and decrees it was contended, that the plaintiff had pleaded material alteration in para-8, while the defendant had clearly pleaded all this to have been done in 1969, and no objection was ever raised by the plaintiff, rather rent was enhanced twice. Then, in rejoinder nothing was said by the plaintiff on this specific stand of the defendant, about 13 construction having been raised in the year 1969, and nothing having been done from 1969 to 1983. This coupled with the fact, that the plaintiff admitted the defendant to be tenant since 1969, and therefore, the plaintiff is not entitled to decree for eviction on the ground of material alteration. Then, assailing the finding on the question of reasonable and bonafide necessity, it was contended, that the plaintiff applied for permission in the year 1989, and last correspondence in that regard is of 4.1.1990, then notice for eviction was given on 11.3.93, and the suit was filed on 15.7.93. Admittedly the permission for raising construction of hotel was rejected, and this delay between applying for permission, and filing suit, has not been explained by the plaintiff. In this regard reliance was placed on the judgment of Hon'ble the Supreme court in Indersen Vs. Rameshwar reported in (2005)9 SCC-225, specially para-10, where it has been considered, that the plaintiff retired in 1994, and he had purchased the property in 1999, while the suit was filed in 2001, and it was considered, that the delay is required to be considered, to test the bonafides, and is fatal to the plaintiff. It was also contended, that during pendency of the suit the plaintiff had sold various plots. Then, it was also contended, that the plaintiff has alternative land, if he at all wanted to establish a hotel, inasmuch as P.W.3 the son of the plaintiff had clearly admitted, that the land is available towards the west of his house, measuring 14 3000 sq. ft. which is equivalent to land in dispute. It is contended that this land being available, it is the duty of the plaintiff to explain unsuitability of that land, and taking that in view, the alleged need of the plaintiff is to be seen objectively. Reliance in this regard was placed on the judgment of Hon'ble the Supreme Court in Sri Balaji Krishna Hardware Stores Vs. Srinivasaiah reported in AIR 1998 S.C.-994 specially para-6. It is contended that learned courts below have upheld the need, because in view of the learned courts below, the landlord is the best judge of his requirement, while the legal position is otherwise inasmuch as in Allimuddin Vs. Chandrika Prasad & Ors., reported in 1996(1) RLW (Raj.)-289, there is one line observation, while in view of the judgment of Bench consisting of three Hon'ble Judges of Hon'ble the Supreme Court in M.M.Quasim Vs. Manohar Lal Sharma & Ors. reported in AIR 1981 SC-1113 para-18, when the tenant shows availability of other premises with the landlord, it is for the landlord to show the unsuitability thereof. Taking any other plea, amounts to betrayal of rent law. Reliance was also placed on the judgment of Hon'ble the Supreme Court in Gaya Prasad Vs. Pradeep Srivastava reported in 2001(2) SCC- 604. Then, the learned counsel invited my attention to the application for amendment in the written statement, seeking to plead, that the bye-laws have been amended in 2000, and the consequence thereof is, that now on the land in question the plaintiff cannot be given permission to 15 construct any hotel, and it was contended, that the existence of the rule is not in dispute, by filing any reply, on the side of the respondent, and therefore, on the face of existence of legal bar, it cannot be said that the plaintiff is entitled to decree for eviction. On the other hand, learned counsel for the respondent, supported the findings of the learned trial court. Supporting the finding on reasonable and bonafide necessity, learned counsel read to me the statements of P.W.1 and P.W.3, and contended that from this evidence the plaintiff's requirement is established, and that the tenant has purchased a very big chunk of land, and has also started business there. Then referring to the statement of P.W.1 it was contended, that Ex.-6 is the site plan of the plot, and even thereafter the plaintiff had regularly been going to the collector for permission. Thus, the delay is clearly explained, if there be any. Then, referring to the statement of P.W.3 it was contended, that it was clearly deposed, that near the suit premises, there are many hotels like Alka, Ankur and Tourist Bungalow etc. Then, regarding permission it was pointed out, that according to P.W.3, he did not get permission, but then, there is nothing to show, that permission was refused, and that the land in question measures 5000 sq. ft. Then, it was contended, that the finding on the question of reasonable and bonafide necessity, is a pure finding of fact, and is not vitiated 16 on any of the grounds available under Section 100 C.P.C. It was contended, that the application was moved to the Municipality for permission, and not granting permission does not mean, that it stands refused. Thus, the judgments cited do not come in the way of the plaintiff. It was maintained, that the defendant cannot dictate the terms. It was also contended, that there was no cross examination, directed to the plaintiff, on the aspect of suitability of the other land, for the purpose for which the eviction is sought. Reliance was placed on the judgment of Hon'ble the Supreme Court, in Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal & Ors. reported in (2005)