Har Narain
Daga Vs. Heeralal & Ors [2000] INSC 610 (1 December 2000)
L.I.T.J
D.P.MOHAPATRA,J.
Leave
granted.
The
appellant is the tenant of a room situated on the ground floor of a building in
Kandoi Bazar in the Jodhpur city of which the respondent is the
landlord. The tenant was using the room as a shop. The landlord resides on the
first floor of the building. He filed a suit in 1973 seeking eviction of the
tenant on the grounds that the room is needed for construction of a staircase
to the first floor of the building and also for his bona fide personal
necessity under Section 13 (1)(h) of the Rajasthan Premises (Control of Rent
and Eviction) Act, 1950( for short 'the Act'). The tenant contested the suit
refuting both the grounds of eviction pleaded by the landlord.
The
trial court rejected the case of the landlord that the room was required for
building a staircase; but accepted the plea of bona fide personal necessity.
The trial court decreed the suit and ordered eviction of the tenant. On appeal
filed by the tenant the appellate court confirmed the finding of the trial
court and maintained the decree of eviction. The tenant carried the matter
further in 2nd appeal before the High Court of Rajasthan which proved
unsuccessful. Hence this appeal.
Shri Sushil
Kumar Jain learned counsel appearing for the appellant contended that the
courts below committed error in accepting the plea of bona fide personal
necessity of the landlord. According to Shri Jain on the material on record the
finding should have been recorded that it is not a case of bona fide necessity
but a mere wish of the landlord to get the tenant evicted from the shop room in
question. Shri Jain further contended that before accepting the plea of bona
fide personal necessity of the premises taken by the landlord the Courts below
should have considered the question of comparative hardship which is a
mandatory requirement under section 14 of the Act. If this question is properly
considered in the light of the material on record, submitted Shri Jain it is
apparent that the hardship that would be caused to the tenant by the decree of
eviction is much greater compared to the inconvenience, if any, caused to the
landlord.
Shri Badri
Das Sharma, learned counsel appearing for respondent No.1 supporting the
judgment under challenge submitted that though 27 years have rolled by since
the suit was filed the landlord is yet to get possession of the premises on
account of which he and members of his family (wife and four sons) have been
facing difficulties. Shri Sharma further contended that the prolonged suffering
to which the landlord and members of his family have been put should also be
considered by this Court while judging the matter.
We
have perused the judgments passed by the trial court, the first appellate court
and the High Court. The question of bona fide personal necessity is essentially
a question of fact on which all the three courts have concurrently held against
the appellant. The case of the respondent that he needs the room on the ground
floor for use by himself and his four growing children (sons) has been accepted
by the courts below. The Courts have also accepted the case that the respondent
who is an assistant teacher in a government middle school is often approached
by students for giving private coaching, for the purpose of which he needs the
room on the ground floor. In view of the concurrent findings recorded by the
courts below the High Court was justified in not interfering with the finding
in the second appeal. On the question of comparative hardship as provided under
section 14 of the Act we find that the trial court having accepted the case of
the landlord that his need for the room on the ground floor as a part of his
residential accommodation for use of himself and members of his family,
compared it against the use of the room by the tenant for commercial purpose.
The court took note of the fact that members of the family of the tenant are
carrying on business at different places in the town and the room in question
is used by the appellant and some employees occasionally. No particular use of
the room appears to have been brought forth in the material placed by the
tenant.
Weighing
the present use of the premises in question by the tenant and the need for its
use by the landlord the trial court held that the balance for weighing the
comparative hardship tilted in favour of the landlord. The said finding was
accepted by the appellate court and the High Court. The finding does not suffer
from any serious illegality.
Therefore,
the High Court cannot be faulted for declining to interfere with it in second
appeal. Further we find that the High Court has taken care to protect the
interest of the tenant in making the observation that in case the room in
question is not used by the landlord for the purpose for which the eviction has
been ordered then he (tenant) will be entitled to be put in possession of the
room as provided in section 15 of the Act. On the facts and circumstances of
the case we have no hesitation to hold that the High Court rightly dismissed
the second appeal. Accordingly the appeal is dismissed with costs. Hearing fee
assessed at Rs.5,000/-.
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