IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR $i¥m§a geaw s.A. No. H [zoos APPELLANT ' /Radhe Shyam Verma, S/o Lunkaran EFENDANT A Verma, Proprietor Verma Rewinding Shop, near petrol pump, Dak’ Banglow Ward, Baster Road, Dhamtari & Road- Nayapara Ward, Dhamtari Distt. Dhamtari (C.G.) VERSUS Iaintiffs RESPONDENTS X E.P.Bachchan S/o G.P.Bachchan Retired Principle Menonite Higher Secondary School, Dhamtari R/o Dak Banglow Ward, Baster Road, Dhamtari Tahsil & Distt. Dhamtari (C.Gl) 2. Vinaykant Bachchan, S/o ‘f E.P.Bachchan, Master, Machinist N.M.D.C./N.D.s. 218 Type—3, Post Kirandul, Distt. Dantewada ( Baster) C.G. / —————-———-——-——————‘— SECOND APPEAL U/s. 1oo OF THE CODE OF J74“! H!GH COURT OF GHHATT!SGARH AT BILASPUR Second Appea! No, 11 6f 2&06 Radhe Shyam Verma Ver5us EP. Bachchan and another POST FOR ORDER ON 5 - Q5 - 2006 Sdl— Dhirendra Mishra Judge HIGH CGURT OF CHHATTI'SGARH kT glLA$FUR $ECONE) APPEM. NO. 11 OF 2W5 Appeiiantidefendant Radhe 5hyam Verma Vs. Respandantsipiaintifis‘ : E? Bachgshan and another Shri D‘N. Prajapati, !earned csunsel for the appeHant/defendant. O R D E ( Passed on 3 £52006) Dhirewra Mi$hra1 J Heard on admissian. 2. This is the defendant’s secand appeal under Sectien 100 ef the Csde of Civii Precedure as Civi§ Appeal No. ?—Af(35 prgferred 5y him against tha judgment and decree dated 18.01.2005 passed by learned Second Civil Judge, Claes—l, Dhamlari in Civil Suit No. 50-N04 was dismissed by learned Additional District Judge, Dhamtari vide impugned judgment dated 26““ November 2G05. (Parties hereinafter shall be described as per their descriptien before the trial Court.) 3. Case of the plaintiffs before the learned Civil Judge was that a suit for eviction and vacant poseession was filed by them with an averment that plaintiff No. 1 is the iandiord and owner ofthe suit eroperty and the same was let out on hire to the defendant for commercial purposes on a monthiy rent of Rs. 225/—. Plaintiff No. t requires the suit property for real and bonatide need of his son plaintiff Nd 2 and he has also executed a Wiil in favour of his sen with respect to the suit property. Piaintiff No. 2 was at that time working on the post ofeMaster Meohanist and was about to retire after 2 Vé to 3 years. He is l.T.i. trained and is conversant with repairing, running, manufacturing of the spare parts of machines j and after taking valuntary retirement proposas to start his own business from the suit premises and look after their parents. He does not have any suitable aitemative nommerciai accommodatien in Dhamtari fer the said purpese. Since the defendant did not pay rent from July 1999 to Juiy 2002 and the plaintiffs require the suit property benaiideiy, the tenancy of the defendant was terminated w.e.f. 31“ August 2002 vide netice dated 05.08.2G02. Though the defendant paid the arrears of rent up ta Qctoioer 2002 but he did net deliver the vacant possession ofthe suit house to the plaintiffs. Hence the instant suit was tiled. 4. The defendant in his written statement admitted that plaintiff No. 2 is the owner of the suit shop. However, he denied that the piaintifl’s require the suit shop for their bonafide necessity. Plaintiff No. 1 has no right to institute a suit and the defendant cannot be evicted from the suit accommodation on the ground of future possibilities. Piaintiff No. 1 is residing with his daughter nameiy Aasna in Raipur and piaintiff No. 2 is empioyed and he has atternative accommodation for commercial and residentiai purposes. Plaintiff No. 2 has a commercial accommodation adjacent to the tenanted shop beside the road and he has also a huge residential accommodation on the hack side and the same is sufficient for residential and commercial purposes. Plaintiff No. 1 has three blocks adjacent to the suit accommodation which they have given on rent. The defendant has spent Rs. 7,00% on maintenance of the suit accommodation. however, the same has not been refunded by the plaintiffs, therefore, the defendant is entitied to adjust the said amount towards rent ofthe suit accommodation. 5. On the basis of pleadings of the respective parties learned triai Court framed issues and aiter recording evidence of the parties, decreed the suit by recording a finding inter alia that plaintiff No. t requires the suit accommodation for the purposes of business of his son plaintiff No. 2 as his son does not have - any suitabie aiternative accommodation for commercial purposes in Dhamtari ’ town and as such they have bonahde requirement of the suit shop and they are entitled to obtain vacant possession of the suit shop. However, theclaim of the piaintiffs that they are entitied'for damages at the rate of Rs.50l— per day from the date of institution ofthe suit tii! deiivery of vacant possession of the suit shop has been negated. Similarly the claim 0f the defendant to recaive Rs.7,000f— spent towards maintenance ofthe suit shop, has also been negated. 6. The appeal preferred by the appellantt‘defendant against the/above judgment and decree was rejected by the learned Additional Elstrict Judge, Dhamtari by the impugned judgment with the identical finding. pi 7. Learned ceunsei for the appellantidefendant submitted that both the Courts below have ignored the admitted facte that plaintiff No. 2 is empioyed in National Minerai Development Corporatien Bailadiia (Kirandul) Baetar and hie wife is alse employed in the Education Department ofthe said project. Plaintiff / No. 1 who is an old person’is residing with his daughter for the last5~6 years in Raipur along with his wife who is also 8? years old. Plaintiff No. 1 is possessed of number of movable and immovable properties in Dhamtari including three shops adjacent to the suit shop and plaintiff No. 2 has admitted this fact in his deposition. lt is further submitted that piaintiff No. 1 did not appear before the trial Sourt to establish the fact that he requires the suit accommodation bonat‘ldely and genuinely for the business‘of his son Vinay Kumar Bachchah. The suit is filed on the ground of bonatide necessity of plaintiff No. 2 who is admittediy working at Ktrandul. However, there is no evidence on record to show that his wife is also prepared to resign and live with plaintiff No. 1 in Dhamtari. It is contended that from the pleadings, documentary and oral evidence available on record the following substantial questions of law arise for adjudication of this appeah (i) “Whether both the Courts below were right in decreeing the suit of the respondentfplaintiffs hoiding that they have proved bonatide need of disputed shop for non~residential purpose particularly when they have not produced any material regarding type of business and money required for opening such business and other things?” -.‘ (ii) “Whether both the Courts below were right in holding that the respondents/plaintiffs are having no other suitable m accommadaticn except disputed éhop though two blocks are Mag vacant which are adjacgnt to the disputed shop?“ “Whether both the Courke beicw were right in not drawing adverse inference against the reependentsipiaintif’is as respondent No. 1 who flied the suit fer eviction, did not get himseif examined before the trial Court?” (m) 8. Reiying upon the judgment 0f the MP. High Caurt reparteci in 208d M.P.A.G.J. in the matter of Rei Kumar Vs. OmQrakesh Bahai and others teamed ceunsei for the appeiiantidefendant argued that in the absence ef any specific pleading by the piaintiffs in their plaint that they de not have any alternative suitabie accommodation for their businese in Dhamtari town and in the owes-examination admitting the avaiiabiiity of alternative aecommodation adjacent to the dieouted shop, disentittes them the decree of eviction on the ground of bona'tide necessity. "" 9. i have heard learned counsel forthe appeilant/defendant on admiseion. 10. So far as proposed substantial question of law No.1 is oonoerned, iearned first appeliate Court relying upon the statement of Vinay Kant (Piaintiff No. 2) has heid that it is established that after taking voluntary retirement plaintiff No. 2 Vinay Kant wishes to reside in Dhamtari with his father and look after him and he atso proposes to open a workshop in the disputed shop as he is weil conversant with machine reiated business. From the pleadings and evidence of this witness it is ciear that at the time he deposed before the Court he was 57 years of age and as such was at the verge of retirement. it ts open to the iandlord who is engaged in service to resign from service and start a business horn the suit premises and the tenant has no right to direct the landiord or expect that the ‘/ landlord should continue in his service. it is the prerogative of the landlord and his son to get the tenant evicted on the ground of honatide necessitvand there is no bar that the iandiord cannot tile eviction suit on the ground of bonaftde necessity. Elaborately discussing the evidence available on record the learned l V 'JI 12. The third question of law raised by the appeiiantfdefendant has also been elaborateiy dealt with by both the Courts below. The suit has been jointly tiled by plaintiffs No, 1 and 2 who are father and son, on the ground of bonafide necessity ofthe disputed shops The piaintiff No. 1 is admittedly 92 years oid who is suffering from various aiiments and therefore, he appointed plaintiff No. 2 as his attorney forthe purpose of institution ofthe suit and plaintiff No. 2 for whose bonaftde necessity the suit shop is required, has deposed before the triat Court on the basis of his persona! knowledge and therefore, both the Courts beiow have heid that no adverse inference could be drawn against piaintiff No. 1 for not entering into the witness boit' as the reasons assigned for his non-examination were just and proper. appei!ate Court ha$ confirmed the judgment and decree passed by the trial Court holding that piaintiff No. 1 bonafidely needs the suit shop for commercia! purposes of his son ptaintiff No. 2. Therefare, the faret proposed queetian of taw ts in fact a question of fact which has been decided by bath the Ceurts beiew in favour ofthe piaintiffs. ./ v: 11. So far as the second proposed question of iaw that the plaintiffs have alternative suitable accommodation for their commercial purposes adjacent to the disputed shop is concerned, it is also the question of fact and the Court below after discussing the oral evidence adduced by the respective parties has held that the accommodation admitted by plaintiff No. 2 Vinay Kant to be vacant is a residential accommodation and there is no evidence on record to show that any alternative non-residentia! accommodation belonging to the plaintiffs ia vacant in the city of Dhamtari and even the defendant has admitted in paragraph — 7 of his t‘ deposition that except the disputed shop there is no other shop titted with ’ shutters in the possession of the plaintiffs and the vacant blocks were used for 1 residential purposes by the hank employees in the past. Thus taking into ‘k consideration the evidence of both the patties, the lower appellate Court 5 T confirmed the finding of fact recorded by the trial Court that the plaintiffs do not have any suitable alternative non-residential accommodation in the city of ‘ Dhamtari forthe purposes oftheir proposed business. 13. However, the abcve ciied ca$e is not applicab!e in the present aase because the piaintiffs have pleaded in para 40 of the piaint that in Dham‘tari there is abundant far machine scope related business and they ck: not have any ether suirable commercial accammadatian beside the national highway in Dhamtari except the suit ehep. 14. On the basis of aforesaid analysis, thie Court is of the censiderecl View that all the questiens raieed by the a’ppellanti'defehdant are queetiens of fact which have been elaborately dealt with by hath the Courts below and finding of the trial Court which has heen subsequently eeni’irmecl by the first appellate Court is based on proper appreciatleh of evieience availabte on record and no question of law much less any substantial question of law is involved for adjudication otthis appeal. Therefore, the appeal being devoid of merit deserves // to be dismissed at the motion stage itself and it is accordingly dismissed. sak- i\ kw: Dhirendra Mishra Judge .. '1};