Kushal Chandra Jain vs Prakash Chand Bandil

The Tenant/appellant in the present second appeal u/S.100 Civil Procedure Code assails the concurrent findings of Courts below awarding decree of eviction and payment of arrears of rent by allowing a suit of the respondent/landlord to the extent it related to the ground u/S.12(1)(f) for bonafide need to do business by the son of the landlord vide judgment and decree passed by 6th Additional District Judge, District-Bhind on 01.12.2017 in Civil Appeal No.48/17.

For the sake of brevity and convenience appellant is addressed as Tenant while the respondent as landlord (LL) in this order.

Learned counsel for the rival parties are heard on the question of admission. Record of the Courts below and findings recorded by both the Courts below are perused.

Pleadings in the plaint disclose that TenantSANo.101/2018was inducted into tenancy of the suit shop in 1977 as per written tenancy agreement between the Tenant and the late father of the landlord at agreed rent of Rs.375/-per month.

On death of father of LL, the LL received said shop in family partition whereafter the Tenant treating the respondent as the LL started paying rent to the landlord. However, after 09.03.2009 no rent was paid by the Tenant. This impelled the LL to send a notice seeking arrears of rent which was not responded to by the Tenant. The plaint further averred that behind the suit shop there is another shop belonging to the LL where the LL is doing business with his father and the present suit has been filed showing bonafide need of the son who wants to do his separate business of hardware in the suit shop and thus needs for eviction for the said bonafide reason. Besides the grounds u/S.12(1)(f), the plaintiff/ landlord further took the ground of the Tenant damaging the suit shop.

The Tenant in his WS admitted that he was inducted into tenancy by the father of landlord in 1977 but denied landlord to have received the suit shop as his share in family partition. The Tenant further averred that he used to pay rent to the landlord by treating him to be an agentSANoof.101/2018firm Laluram Permanand and Sons and not in personal capacity of landlord and therefore, the suit filed by the LL in his personal capacity is not maintainable. It was thus objected by the Tenant that the suit ought to have brought by the firm. The receipt of legal notice was denied by the Tenant. The allegation of damaging the suit shop was also denied.

Issues were framed by the learned trial judge and evidence was adduced by the rival parties which included certain rent receipts filed by the Tenant as Ex.D/1 to Ex.D/104 to demonstrate that the same reflected the name of firm and not of the LL.

After marshaling the evidence, the trial Court found that the Tenant admitted in his testimony that he used to pay rent to the LL and not to the firm and also that the suit shop was originally owned by the father of the LL.

On the basis of this evidence, the trial Court on the principle of preponderance of probability as the Tenant had paid the rent not to the firm but to the LL after death of the father of the LL, granted decree in favour of the plaintiff/LL and declined to accept the plea of the Tenant that merely because the rent receipts Ex.D/1 to D-104 showed the name of the firm, the case of the LL gets demolished.   SA No.101/2018 Trial Court thus held that relationship of the LL and Tenant was impliedly admitted by the Tenant and thus found the said relationship to exist by holding that LL has discharged his burden of proving existence of relationship and the burden thus  shifts upon the Tenant to prove otherwise which the Tenant failed to do.

The trial Court returned the finding in favour of the LL though rejecting the ground of damage to the suit property but decreed the suit in favour of the Tenant by finding the grounds u/S.12(1)(f) to be proved.

Great emphasis has been laid by the learned counsel for the Tenant/appellant that the finding recorded in respect of issue No.6 that the firm and not the respondent was the LL of the suit shop, is perverse. In this respect, it is seen from the record that receipts filed by the Tenant as Ex.D/1 to Ex.D- 104 apparently reflect the name of the firm but that by itself does not prove that the tenancy was between the firm and the Tenant.

The evidence brought on record reveals that LL established that Tenant used to regularly pay rent to the LL which fact has been admitted by the Tenant in his testimony.

This certainly shifts the burden upon the TenantSA Noto.101/2018prove that rent was accepted by the (L) on behalf of the firm and not in his personal capacity. This burden which shifted upon the Tenant was not discharged by him. Thus, there is no error in the finding recorded by the Courts below that rent was paid to the firm and received by the LL.

It is submitted by the learned counsel for the Tenant that after the death of the father the shop in which the LL used to jointly do business with his father is now available to him and therefore, the bonafide shown for vacating the suit shop becomes non-existant.

In this regard, it is seen from the record and evidence adduced that LL has not only pleaded but also brought evidence on record to the effect that after death of his father, he received the suit shop in family partition or family settlement and therefore, the question of LL doing business behind the suit shop does not arise. Though the factum of partition/family settlement is not established by any documentary evidence except oral evidence of LL but the fact remains that suitability of bonafide need, can not be questioned by the Tenant.

Even if it is assumed for the sake of argument that the suit shop and the shop situated behind the suitSA Noshop.101/2018is available for the LL, the Tenant cannot dictate terms as to which shop is more suitable to the Tenant to do business. It lies in the exlusive domain of discretion of LL to choose the venue of doing business and in the exercise of this discretion the Tenant has no role to play.

After having heard the learned counsel for rival parties and in view of above and having perused the pleadings and evidence on record, this Court is of the considered view that no substantial question of law arises for consideration.

Consequently, the present second appeal is not worth admitting and is dismissed in limine.

The appellant/Tenant is granted three months time from today to vacate the suit shop failing which the respondent/LL would be free to execute the decree in his favour.