'PELLANT EFENDANT IN THE HGffl COURT OF JUDICATIURE AT CHHATTISGARH SECOND APPEAL N0.61/2003 KAMAL KiSHORE S/o Shr' KanhaiyalalAgrawa!, Aged About SByears R/o Patet Ward, Oongargarh Distt Rajnandgaon/C.G.) VCRftl EB^^' 'RESPONDENTS g PLA!NTIFFS -i.SUftE.SH KUMAR S/0 Shri Late Ganoa Prasaci Aaed .About 46 vears. 2.SAKET KUMAR -S /O Shri Late Ganga Prasad Aged About 46 years, Both R/o Danteshwari Ward Donaaaraaon Distt. aon APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEOtTRE A COUKTFEE OFSS 630/-IgAEFDtED TO THE rviE&IO OF.APPEAL AS PER COVKS'WEE' PAinpORTHE FIRST ApPEM-- ^l ^F'iS- HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 61/2003 Appellant KamalKishor® Versus Responctent Suresh Kumar & Anr. Shri Manindra ShiNadava, leamed Sr. Gounset with Shri Atooz Khan for the appellart!defendant. Shri Praftdl Bharert, teamed counset feTtiecawatois/ responderts. JUDGMENT (Passed on^-2.2005) This apped is preferred by Uw defendanMenant agalnst the Inyugned judgment and decree datod 27/110002 passed by AiklMonal District Judge, RajnandgaBn in Chril Appaal No. 5 M96 by whieh the judgment and decres of wicfon dded 29/09a& passett toy Givi Judge Class 1 In CivilSuitNo. 3 A/1997 has be«)contmned. Facts of thecase in brief are that ptalnUffs are tte ownws of the sut property and the defendant is the tenant The case of the plainWis before the trial Court was that they ww®ttw money lendws and deding m the jewelteiy bushtess. They aie doing the said businass m the smaN twtwted premtees which they had teken on moitfily rent of Rs. 40(V- from one Prakash Chandra Bhandari. The fuittier case of <he plainlilfe before the trial Court was that U»said tBnantod premises is vwy smaB and tt is very tfldcult for them to cany on thair business rtsuch a smaU place and the swt premises would be suitabte for ttieir business. The plainBffe /*.- ,/ 1 -7 -2— pleaded bdwe the trial Court that thdr®te no efhef rewonably suitabte non residenUal accoimnodatipn avaitabte to <hem in Dwigwgarh towm and as such Vnwf bonaMet/ requtre fte suit accommodaUon for opening th® shop therein. tt is ftirther pteaded that they had pur^iased the said hous® frem the erslwhite ownw namely Btehesh Chandra Jabi on 06/12^5 ihroi<|h a registered sate deed and one ^ar srftor the pwchase of <he property, they instttuted the nstart sutt for evfctton as theh- landtord Prakash Chandra Bhandari was pressurizing for evicBon. As the plantifls had purohased the sult premises, Vwy had premised their landtoid to vacatB the said premses. It has been further ^eeded in the plaint that plaintiff No2 s canying on his business of readymade garments in th® tenanted premises of one Ganeshmal Bhandari which he obtained on monthly rent of Rs. 44Q/-. It is also pteaded that this shop was also Inadeqiate for the pinpose and therefore they needed the suB premiseB bonafidetyfw openir^ the shop. The defendant h his writton statement admitted that he was ihe tenant of the plainUfe. Rent <rf Rs. SSW- per montti has abo been admitted. N is also notdisputed t^thedefendantthfrtltie plaintNfe are tti& money tenders and they cteal in the business of jewaBery in the tananted premises of Prakash Chandra Bhandari. However, the size of the shop and rent has been dwiadfor want ofkrwwtoctee. The case of tfte defendant beterette trid Court was that th®shep in whtch the plaintiffeare canying on theirbusiness, is suinciertty suitabla and the purposa of the ptaintffls for filmg the sutt is to enhance ttie rent to Rs. 100(V- per month and as the defendant did not oblige the plaintitfe, tha instant suit was filed. It is further pteaded that tha plaintiffe have a very big house in the commereial area «rfDonga^arh town which is swrounded by road from ttree sides. AcconUng to the defendant, apan from the above accommodation the plaintifls are having saveral other accemmodaUons also h the commeroial area of Dongaigarh town which are lying vacant and the instant suit was fited wlh the tadt support <f Prakash Chandra Bhandart. Itwas also pteaded by tha ctefendart in his wrNsn statement that the plairtitfe had a big shop in ttie name and styte <rf Krishna 3 Jewelters and this apart they twes also opened another jewellery shop in their joint family house. The defendant ftirther pteaded that ^»artfromthis accommodation, Uie plainffls have a big house admeasuring 3500 Sq.ft. within Uie munteipal area of Dongargarh and they also have the s^ricultural land and as such the plaintiffs don<rt requlre fte suit premises for their bona fide need. Leamed trial Court decreed the swt by recording a flnding that requirement of the plaintifls for the suit premises to cany on their business is rsal and bona fide as there is no other reasonably suUable vacant accommodation in their possession tn Dongargarh town. The Trial Court further held that as defendant had purchased anottier suitoble housa in the name of his wtfe, he is liabte for evictton and thus decread the suit <rf the plainUfls which was confirmsd by the Ffret Appellate Court by th® impugned judgment and ctecree. Leamed Sr. Counsel appwiring for ths aniellant / defendant has challenged the abovs concurrent finding tfbotti the Courts below mainly on the ground that white deciding the flrst appeal and confirming ths judgmentand decree of the trial Court, ttw leamed Fir^ Appellate Gourt has not apptied ite mlnd and wittiout m^culously dealir^ wth the evhtonce on record has rejected the appeal rf the appellant summarily vide paragraphs 12, 13 and 14 of the impugned juctemwt. Lsarned counsel has particulariy challen^d the flnding recorded by the first Appellate Court in paragraph 13 of theimpugned juc^ment by whidh it is held ttiat after seriously considering the evidence regarding avaltabillty of the attomaUve reasonably suitable accommodrtton availabte to the plaintiffe and furtfter consklering the see, place and area it would b® wrong to say that the plalnUfe have more suitable commercial accommodatton in their possession. He further submils that tt was wong on the part of the appellate Court to reject tta appeal by recording a finding Uiat the plaintilfe do not have more suitabte commercial accommodatton in their possesston than ths suit premfess as ttie requirement under Sectton 12 (1)®Of the ChhatUsgarh Accommodafion Cortrol Act simply says that the landtord has to prove ttet he has no other / 5:;. > ^' .- L< reasonably sutebte non-residenUal accommodation of hts own in his occupation in thecHy or town concemed and In support of hls contention he has placed reliance on deciaon of the Apex Court !n the matter of Hasmat Rai and another Vs. Raghunath Prasad reported in 1981 M.P.L.J., 610. In paragraph 6 of the sald judgment Hon'Me Apex Court has held that landlord has to estabUsh that he has no other reasonably suilabte non-residential accommodation of hisown in his oecupatton in tti® city or the town concerned. L^imed counsel further reliedon the decision of M.P. Hlgh Court in the matter of Hakimuddin Saifl Vs. Prem Narayan Barchhlha reported in 1998 (1) M.P.L..I., 200S. In paragrafrii 13 ofthe said judgment it is hekl thatthe landlord / plalntiff must plead and prove all the ingredients of SecUon 12 (1) (0 in order to succeed in a suit for evtetion. Further reliance has been placed by the leamed Switor Counsel appearing for the appellant on the deciston of M.P. Hlgh Court in the matter of Vlkas Kumar Onkar Prasad Gupta Vs. Radhamal Heeramal Sindhi reported in 1998 (2) M.P.L.J. 139. In paragraph 7 af the said judgment ft is held that if the platnUff / tandlorel does not svccead in e^ablishlng the bona flde requirement of the suit accommodation and that he hasno other altemattve reasonably suitabte accommodaUon in his possession, deeree of eviction in his favour can not be pa^ed. Ukewise retiance has been placed on the decisfon of the Supreme Gourt in matters of Deenanath Vs. Puran Lal reportedln (2Wt) 8 S.C.G. (paragrah 15) and in the matter of Shiv Sarup Gupte Vs. Dr. Mahesh Chand Oupta reported in (1999) 6 SCC 222 (paragraph 13). tn both the above said rases it is held that the landlord / plaintiff must prove fliat he has no other suftably non-resldenUal accommodsrtion of his own in th® city or town concerned to carry on his business. In my consldered view the above casesare not of any help to appellant inasmuch as it is an admttted posiUon by the pleading of respecUve parUes that Ihe plaintifls are carrying <wi their business in rented premisss betonging to one Prakash Chand Bhandari whteh was taken by the plaintUfe on monthly rent of Rs. 400/-. tt has been ptoaded by the plaintHfe that the tenanted premises is very small whlch is not sufBcient for them to cany on and expand the btBinws. Thus taldng into ^ -^- consideration the admitted fact that the plaintiffs are carryir^ on the business in the tenanted aGcommodafion betonging to one Prakash Chand Bhandari whteh is nat disputed by the d^endant, the bona fitte of the plaintiffcan no/t be doubted on the grQund of availability of reasonab^ sutebte accommodaSon wltti the ptaintiff. In this regard ttie Ap®<Court in ttie matter of E.M. Kuthurattullah Vs. R.Rajendrat reported in (2003] 10 SCC 679, in paragraph 2 has held as under: "The onty submission made by the leamadcounsel for the appellant is that inasmuch as the case of the respondent Is for occupation of tte suit premisas only after reconstruction and as availability of ground under Sectfon 14(1)(b) has been negatived by the High Court, a decree for evtetkwi pure and simple unctor Sectton 10(3)(a)(iil)couklnothavebeenpassedtnthefactserai ciroum^ances of the case; Havir^ heani the tMffned counsel for the parUes, we are of the opinion ttiat tte submlssion though forcefully advanced by the tMmect counsel for the appellant cannot be accepted. It has been held by thls Court in RamniMal Pitambardas Mehta Vs. Indradaman Amrattal Sheth that where the case ptoaded by the landlord is that he wants to demotish and reconstruct Uie tenancy premises before occupying the same for his own requirement, the natura cS the requirement pteaded vroukl b®on& of bona fide requlrement and not one of ttomolitkm and reconstrucUon. Undisfaitedly, in the case on hand, tha landlord Is ruming his business In a rented shop; he does not have any other non-residential prsmisss availabto witttin the dty to saSsSy his own requirement. We cannot find fault with the flnding of ttie High Court that the requirement of the (andtord who is already engagad in a commercial activity but in a rented shop cannot be said to be not acting bona fWe when h® claims the tenancy premises of hisown for saUslying hls own requirement for continuing Ms own business by shifUng the same to the suU premises. The fact that a case of bona flde requirement for demolition and reconstruction has not been held proved would not make any difference". In the present case ttere is an un-rebutted pleadlng ofttie plaintilfe that readymade gannent shop run by ptaintiff No. 2 is also run in Uie tenanted premises. So far as one ofthe contentions ofth®defendant that <he familyofthe ptaintiffe have a big house situated in commercial area of Dongargarh town which is suitable for ttielr requirements, is concerned they have categorically stated that the house in question is used for their residenfial purpose and in Ihat house a family consteBng of 20 members is residing joinUy. Once the plainUff is able to establish his bona fide requirement of the suit accommodation to the objectwe satisfaction of the Courts offact, the same can not be negated on the ground of availability of attemative accommodation. The Supreme Court in yet another deeisicn in the matter of Akhileshwar Kumar and others Vs. Mustaqulm and others reported in (2003) 1 SCC 462, (Paragraph 4 ) has held ttiat orwe landlord proves his bona fides to the objective satisfacUon of fte Court of facts, the chotee of accommodation which would saUsty his requirement should be left to landlord's subjective choice and the Court cannot impose te own choice. The Apex Court stressed that the landlord's choice murt be reasonable and not whlmsical. Leamed counsel for the appellant farther challenged the flnding of the flrst Appellat®Court on the ground that theflretappeNate Gourt beins the final Court offacts has deatt with the factual aspeet of the case in a shortest possible manner without consldering the matertal discrepancies availabte in the statement of the plaintiffe' wtness who has been examined as PW-1. He referred to the wirious discrepancies available in the statement of PW-1 namely Suresh Kumar Soni in extenso to demonstrate that e plainfiffe havenot come to the Court wtth dean hand and they have deliberately suppressed Vne availabillty of altemative reasonably suitable accommodation jn their possession whteh Is evident y ^ •L. \.) from the statement of the above vritness epamined as PW-1 . However, tfte discrepancies pointed out by thecounsel for the appellant In the statBmeirt of PW-1 are of no avail in the Itght of the admitted position that the plaintBfe were doing their business from the tenanted premises v^tich established the bona fide requirement ofthe plainMfe for opening a shop. Leamed counsel for the appellant furtter relied upon ttie decision of the Supreme Court in the matter of State of Rajsthan V«. Havheol Singh (Dead) through his LRs, reported in (2000)5 SCC 652, wherein it is held ttiat where there are glaring inconsistencies and contradlcBons in the evidence and ttie issues raised are serious, th®Court is not hampered by the provisions of Section 100 of the CPC from interfering with even tt® findings <rfthe fact of the lower Courte. The above preposifion of law is absolutely Gorra;t but in tte present < case, the same is net applicable because of the reason that tte plahjtMfe have already established Uieir bona fide requirement ofthe suit pranises as ttiey are carrying on business from the tenanted premis^ which is not dlsputed by ttie d^endants and thereforethe concurrent findings offact of both ttie Courts below do not caM for any intefference even assumlngthat ths facts availabte on record have not been properly diseussed at ler^Ui by the firet Appellate Court. Under these ctrcumstances. t am of ttie consWered viaw Vhat ftwe is no substantlal question of law invoh^ed for adjudicatfon of tiis appeat and ttie Second Appeal being ctevotd <rf substance is liabte to be dismissed at the admission staga itsetf. Consequently, the appeal is dismissed attte admission stage Bself. M.C.P. No. 1023/2003 ateo stands disposed of.-—