UDAY SHANKAR UPADHYAY & ORS. v.

NAVEEN MAHESHWARI (Civil Appeal No.5888 of 2006)

NOVEMBER 18, 2009 [MARKANDEY KATJU AND R.M. LODHA, JJ.]

[2009] 15 (Addl.) SCR  1002

The following Order of the Court was delivered  

ORDER

1. This appeal has been filed against the impugned judgment and order of  

the Madhya Pradesh High Court dated 6.10.2005 in Second Appeal No. 107  

of 2004.

2. Heard learned counsel for the parties and perused the record.

3. The Landlord-appellant filed a suit for eviction of the tenant from the  

shop in question on the ground that he needs the shop for setting up the  

business of his two sons viz. Nischal Upadhyay and Bhaskar Upadhyay, and  

there is no other suitable accommodation for the said purpose.

4. The facts have been mentioned in the judgments of the courts below  

and hence we are not repeating the same here.

5.  The plaintiffs/appellants  filed the suit  for  eviction against  the tenant  

stating  inter alia, that the shop in dispute (which is on the ground floor) is  

required  for  starting  the  business  of  Nischal  Upadhyay  and  Bhaskar  

Upadhyay, major sons of plaintiff  No. 1. The trial  court by judgment dated  

8.10.2002 found that the need of the landlord was bona fide and decreed the  

suit.

6. Before the trial court the tenants had taken the plea that the plaintiffs  

have alternative accommodation which is a hall over the suit shop, and hence  

the sons of plaintiff No. 1 can carry on business there. However, the trial court  

held that the said hall on the first floor is a residential accommodation and the  

plaintiffs have no suitable accommodation for doing business.

7. Against the judgment of the trial court, the defendant filed an appeal  

which  has  been  allowed  by  the  first  appellate  court  by  judgment  dated  

19.1.2004,  true  copy  of  the  said  judgment  is  at  Annexure  P-2.  The  first  

appellate court held that the hall above the suit shop is a suitable alternative  

accommodation and it can be used for non-residential purpose. Hence the  

first appeal was allowed.

8. It may be noted that the first appellate court has not held that the sons  

of plaintiff No. 1 do not have bona fide need of some premises for doing their  

business. All that it held was that the alternative accommodation on the first  

floor which is a hall can be used for doing business.

9. The appellants filed a second appeal which has been dismissed by the  

impugned judgment and hence this appeal.

10. Thus the fact as found by the trial court is that the sons of plaintiff No.  

1 bona fide want to start their own business separately, and this finding has  

not been disturbed in appeal.   

11. In our opinion, once it is not disputed that the landlord is in bona fide  

need of the premises, it is not for the courts to say that he should shift to the  

first floor or any higher floor. It is well-known that shops and businesses are  

usually (though not invariably) conducted on the ground floor, because the  

customers can reach there easily.  The court cannot dictate to the landlord  

which floor he should use for his business; that is for the landlord himself to  

decide. Hence, the view of the courts below that the sons of plaintiff No. 1  

should  do  business  on  the  first  floor  in  the  hall  which  is  being  used  for  

residential purpose was, in our opinion, wholly arbitrary, and hence cannot be  

sustained.

12. As regards the finding that the sons of plaintiff No. 1 are getting salary  

of Rs. 1500/- from the firm, in our opinion, this is wholly irrelevant and was  

wrongly taken into consideration by the High Court.

13. For the reasons given above, the judgments of the High Court and the  

first appellate court are set aside and that of the trial court is restored. The  

appeal stands allowed. No costs.

14. However, the respondent is granted one year’s time to vacate the shop in  

dispute on furnishing the usual undertaking within six weeks from the date of  

this order. The respondent shall, however, continue to pay the rent during this  

period.