• •-•.• -StSSS IN THE HIGH COURT OF JUDICATVRE OF C.G. AT BILASPUR (C.G.) SECOND APFEAL N0. 3^/ /2004 APPELLANT: RBSPQNDENT \ ; •Md. Safi aged 40 yrs. . s/o Slieikh Rahimuddin Prop. M/s. Shakil Tailors, Near C.M.D.Chowk, Vidya-Up- Nagar. MainRd. Bilaspur, C.G. VERSUS Dr, Mahesh Kumar Rai aged 69 yrs. S/o Late Dr. Ramacharan Rai Retd. Joint Director, Vet. Services, B.D.A. Colony, Ring.Road No.2 Shanti Nagar,BUaspur C.G. MEMO OF SECOND APPEAL U/SEC. 100 C.P.C. inde Bench:- Hon'bie Siri Justice Dhirendra Mishra iiant i.3810f 20J VS Respondent Appeiiant by Shri Azad Siddiqui, Advocate. Respondent by Shri Upendra Bharat, Advocate. JUDGE [Deliveredon Heard on admission The appeliant/defendant has preferred the instant second civil appeai against the impugned judgment and deeree dated 15.05.2004 passed by the learned first Additional District Judge, Bilaspur in Civil Suit No.-10,W2Q04 and by which.the judgement and decree passed by the Vth Civil Judge, Class-1, in Civil SuiS No210-A/2000 has been conflrmed. (Parties hereinafter shail be referred to as per their descriptlon in the trait Court.) The respondent/piaintiff filed a civil suit for vacant possession of the suit house along wlth damages against the appellant/defendant averring that he is She owner of the suit house and on She basis of oral tenancy, the defendant i; tenant ofthe plaintifffrom 01.11.1987 on a monthly rent of Rs. 425/- whera he is doing taitoring business and as the plaintiff has retired from his services on 31°' December 1990, he needs the said shop as also the other five suit shops for establishing cattle and poultry feed factory. II was alsosubmitted that he got his factory registered with Small Scale industry for a provisional reglstration of two years. However, he got his period extended for further perlod of three years, as hs could not obtain vacant possession of the suit shop. !t was also submitted that for the purposes of thi's business, he got his fn/e other adjacent shops vacated which is now in his possession and except thsse six shops, the plaintiff has no other reasonable and suitable premises within the Bilaspur town for his said business. >W*i(rti(»»ruwuK»s,»mi The plaintiff further submtts that the earlisr suit No. 3S-A/02 was dismissed for default in ths year 1997 but the applieation for restoration was sllowed. However, the revision preferred by the defendant was allowed vide order dated 14.07.2000 by the High Court of Madhya Pradesh, Jabalpur with tlberty to the plalntiff 1:0 file fresh suit. The defendant denied the allegations of the plaint and stated that the plaintiff does not require ths suit shop bonafidely and the plaintiff desires to give the suit accommodation to others aftar gettlng it vaeated. !t is submitted by thf defendant that the plaintiff had earlier proposed to sell the suit property to the the defendant is ready to purchase the suif shop for a reasonable pnce. However, the trla! court decreed the suit by recording a finciing thas stie plaintiff requires the shop for his bonafide necessity of openlng the cattle feed industr^ and except the disputed shop and five other shops, there is no other reasonabla and suitable shop availabie with the plaintiff in the Bilaspur town. The appeal preferred by the plaintiff was allowed by the impugned order that the plaintiff bonafidely requires the sutt shop and the findings ofthe trial Court i.n this. regard does not call for any interference as the piaintiff has been ab!e to show his bonafide necessity subjectivsiy and objectively as the piatntiff requires the same for opening of the cattle feed induatry after retirement- The contention of the plaintiff is that he has experience of animal husbandry, veterinary treatment and that he got his industry reglstered wrth the Small Scale Industry and has sufficient finance for establishing the sald industry and further that he has aiready got his five other adjacent shops vacated for his business. The submission of the defendant is that there is no bonafide necessity of the piaintiff as he has already sufficient livelihood from In the form of pension and other fued deposits and further that the piaintiff has not been able to establish that he has obtained no objection certificate from various departments to establish the said industry and the ground of opening of cattle feed industry is simply an excuse to get the house vacated as the industry can not be established in a densely populated area. , \,, In appeal, the defendant also raised a ground that the plaintiff has aiready possessed five vaoant shops for establishing ihe cattle feed center/industry busine3s and the business ean be run in Ihe five shops. However, all these contentions were not accepted by the first Appel!ate Court on the ground that the ^aintiff needs the suit accommodation and other flve vacant shops in possesslon for establishing catti'e feed industry and ft is the. discretion of the plaintiff to choose the accommodation for opening of his business and the appeal was disrnissed hoiding that the findings arrived by the trail Court is based on subjective and objective analysis of the material ava.tiable on record and it does not call for any interference. Lsarned eounsel for the dawndant has raised the similar objeetions as were raised by him during the trial before the trial Court and the first Appeilate Court and the substantial questions of law proposed by the defendant are questions of facts, which have been answered by the concurrent findings of both the Courts beiow against the defendant and suit has been decreed on the of objective analysis of the evidence availabie on record that the plaintiff requires the suit shop for his bonafide necessity of his opening of cattle feed industry and for which he has no reasonabie and suitable acoommodation in Bilaspur town. Thus, the appe!!ant/defendant has not been abie to show that there is any substantial question of law invoived for the present appeal for admission. After considering the facts and eireumstances of th8 case and after going through the reoords and judgement and deoree passed by both the Courts beiow, I am ofthe opinion that there is no substantial question of !aw involved in the present second appea! fo.r its adjudication and it desen/es to be dismissed and the same Is accordingiy dismissed, However, in the facts and circumstanoes of order as to costs. i case, there shali be no Sd/- Dhirendra Mishra Judge inrtirtti: