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CASE NO.: Appeal (civil) 7041 2000

PETITIONER: HAR NARAIN DAGA

       Vs.

RESPONDENT: HEERALAL & OTHERS

DATE OF JUDGMENT:       01/12/2000

BENCH:

JUDGMENT:

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     J U D G M E N T

     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

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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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