Point of Law: since the plaintiff was not starting a new business, which could be started in any other shop, as the requirement was for expanding the existing business by removing the wooden partition and as the business of the plaintiff is settled in part of the shop, it would be absolutely unreasonable to require the landlord to shift his business to another shop inasmuch as settled business carries with it the goodwill which is directly associated with the place of business.

JUDGMENT :

1. This second appeal is directed against the judgment and decree dated 30/9/2013 passed by the learned Addl. District Judge No.2, Bhilwara, whereby, the appeal filed by the respondent has been allowed and judgment & decree dated 7/12/2007 passed by the Addl. Civil Judge (Sr. Div.), Bhilwara has been reversed and consequently the suit filed by the respondent-plaintiff for eviction and arrears of rent has been decreed.

2. The suit was filed on 24/1/1992 by the respondent landlord seeking eviction of the appellant from the suit shop and for recovery of arrears of rent inter alia with the averments that the suit shop was situated at Sarafa Bazar, Bhomiyon-ki-Gali, Bhilwara, which was let out to the appellant-defendant on a rent of Rs.100/-per month. It was alleged that the rent was in arrear since 1/1/1991 and on the date of filing of the suit, 12 months’ rent was due. Allegation regarding material alterations in the shop by putting up iron sheets on angles on the wall above the gate of the shop were also made.

3. Further submissions were made that the area of the shop in which the plaintiff was carrying his business of ‘Pan Shop’ was 6’x3’, which was adjoining the suit shop with only a wooden partition in between, the plaintiff’s shop was too small and the plaintiff’s son also is doing business with him in the shop, both the them cannot sit in the shop at the same time and one is required to stand on the street or go home. Further, the shop was too small to accommodate all the goods. Submissions were also made that the plaintiff’s income was too low and it was very difficult to take care of the family from the said income and for the purpose of augmenting his income, he wanted to start wholesale business of ‘Bidi’, Cigarette, Pan Masala and confectionary items, which was not possible in the present shop. Indications were made that the plaintiff wanted to merge the suit shop with his shop by removing the wooden partition so that he can conduct his wholesale business and support his family well. With the above submissions, reasonable, bonafide and personal necessity also was claimed.

4. Submissions were made that there will be no hardship to the defendant if the shop was vacated and that plaintiff would suffer greater hardship in case the shop was not vacated and that partial eviction was not possible.

5. Written statement was filed by the appellant-defendant denying the averments made in the plaint. It was claimed that entire rent was paid, the shop was on rent with him since 1971 and that the rent was increased in January, 1991 to Rs.100/-p.m. and a fresh rent note was executed. Allegations were made that the landlord, only with a view to increase the rent, did not accept the rent, which was sent by money order and the same was ultimately deposited by him under the provisions of Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and as such, no default has been committed in payment of rent. Allegations pertaining to material alterations were also denied. Regarding bonafide necessity of the suit shop, it was stated that the plaintiff has given his other shops on rent and they fell vacant from time to time, therefore, it cannot be said that the need was bonafide.

6. Based on the above submissions of the parties, the trial court framed seven issues. On behalf of the plaintiff, three witnesses were examined and certain documents were exhibited. On behalf of the defendant also three witnesses were examined and certain documents were got exhibited.

7. After hearing the parties, the trial court decided the three issues pertaining to default in payment of rent, material alteration and reasonable & bonafide necessity in favour of the defendant and consequently dismissed the suit.

8. Feeling aggrieved, the plaintiff-respondent filed first appeal. The first appellate court by its impugned judgment, though upheld the findings on the aspect of default in payment of rent and material alteration, reversed the fi