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1981 Supreme(J&K) 49
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
I.K. Kotwal,Gh. Mohammad Mir, JJ.
Mohd. Ashraf Ahanger - Appellant
Versus
Gh. Mohd. Shah & Ors. - Respondent
CSA No. 23/1975
Decided On : 31 August, 1981
Advocate For Appellant: K.N. Raina
Advocate For Respondent: S.T. Hussain
A decree for ejectment of a tenant can be passed only on any one or more of the grounds mentioned in Section 11 of the Jammu & Kashmir Houses and Shops Rent Control Act, 1966. A subsequent event, such as the sale of machinery and letting out of the shop by the landlord, can be taken into consideration by the court to modify the decree accordingly.
Headnote:
EJECTMENT - JAMMU & KASHMIR HOUSES AND SHOPS RENT CONTROL ACT, 1966 - SECTION 11(1)(H) - REASONABLE REQUIREMENT - INTERPRETATION - SUBSEQUENT EVENT - EFFECT ON DECREE - VESTED RIGHT.
Fact of the Case:
The appellant challenged the decree of ejectment passed against him from a shop on the grounds of personal requirement and default in payment of rent. The trial court found that the appellant was not in arrears of rent and that the second respondent reasonably required the shop for expanding his business. The lower appellate court confirmed the findings and the decree. During the pendency of the appeal, the appellant applied to lead evidence on a subsequent event, namely, the sale of machinery and letting out of the shop by the second respondent.
Finding of the Court:
The court held that the evidence produced by the parties justified the findings that the second respondent reasonably required the suit shop for expansion of his business and that the advantage which he would get in the event of the appellant's eviction would be far greater than the disadvantage to which the latter would be put by his eviction. The court also held that the requirement of the second respondent was the requirement of the first respondent, who held the property for the benefit of the second respondent. However, the court found that the personal requirement of the second respondent had ceased to exist after he sold the machinery and let out his own shop to another person.
Issues: 1. Whether the evidence produced by the parties justified the findings that the second respondent reasonably required the suit shop for expansion of his business? 2. Whether the requirement of the second respondent was the requirement of the first respondent, who held the property for the benefit of the second respondent? 3. Whether the personal requirement of the second respondent had ceased to exist after he sold the machinery and let out his own shop to another person?
Ratio Decidendi: 1. The court held that the evidence produced by the parties justified the findings that the second respondent reasonably required the suit shop for expansion of his business. The court relied on the fact that the trial court and the lower appellate court had recorded these findings on appreciation of evidence and that such findings were binding on the High Court, howsoever erroneous they may otherwise be. 2. The court held that the requirement of the second respondent was the requirement of the first respondent, who held the property for the benefit of the second respondent. The court interpreted the expression "or for the occupation of any person for whose benefit the house or shop is held", occurring in Clause (h) of Sub-Section (1) of Section 11 of the Act, to include not only the co-owners of the house or shop, but also all those whom the owner landlord may be under an obligation to settle on it to make them earning hands in life. 3. The court held that the personal requirement of the second respondent had ceased to exist after he sold the machinery and let out his own shop to another person. The court relied on the fact that the second respondent had not come forward to deny these allegations and that there was no rebuttal to the evidence.
Final Decision: The appeal was allowed, the judgments and decrees of the two courts below were set aside, and the respondent's suit was dismissed.
1. This is defendants appeal against whom a decree for ejectment from a shop has been passed by the trial court and confirmed by the lower appellate court.
2. Respondents 1 & 2 here in who are father and son respectively, brought a suit for ejectment against the appellant and respondent No. 3 were in on the twin ground of personal requirement and default in payment of rent. It was alleged that both father and son reasonably required the shop for their business. The suit was resisted by the appellant and respondent No 2 inter alia on the grounds that neither respondents 1 and 2 reasonably required the suit shop for their personal occupation, nor was there any default in payment of rent. The appellant, for whom respondent No. 4 had acquired the shop as his guardian, had been paying the rent regularly. Some other pleas, including one regarding invalidity of the notice for ejectment, were also raised in defence. The trial court framed a number of issues and eventually came to the conclusion that neither the appellant, the tenant was in arrears of rent nor had he committed any default in payment of rent, creating an indefeasible right in the landlord to eject him. It returned a finding that whereas respondent No. 1 did not require the shop at all; respondent No 2 did require it for expanding his business by installing a few more machines in it. On the question of comparative advantage and disadvantage also, it held in favour of respondent No 2. The trial court consequently passed the decree prayed for.
3. Aggrieved by the aforesaid decree, the appellant challenged the same in the court of Addl. District Judge, Srinagar, Before him the appellant pressed only two issues: one, relating to the reasonable requirement of the second respondent, and the other in regard to the invalidity of the notice of ejectment. Both these pleas were turned down by the Additional District Judge, who consequently confirmed the findings in regard to the reasonable requirement of respondent No 2 and the comparative advantage and disadvantage recorded by the trial court and upheld the decree passed by it. The appellant has felt aggrieved of the decree of the lower appellate court as well and has challenged the same in this appeal
4. During the pendency of this appeal an application under Order 41 Rule 27 of the Code of Civil Procedure was moved by the appellant praying that he may be allowed to lead evidence on an event which had taken place subsequent to the passing of the decree by the lower appellate court, in that, the second respondent had sold the machinery installed in his own shop to one Abdul Gani Wadhera and had also let out the said shop to him. It was also averred that the second respondent had joined Government service and no more required the suit shop for his personal occupation for expanding his business by installing some additional press machinery in the suit shop On this application this court allowed the parties to lead evidence. Whereas the appellant examined a few witnesses, including Abdul Gani Wadhera, the respondent chose not to lead any evidence in rebuttal.
5. Mr. Raina appearing for the appellant has raised three contentions in support of the appeal. His first contention is that respondent No. 1 being a Mohammedan father, and therefore, the sole owner of the suit shop, cannot be said to hold the shop for the benefit of his son, the second respondent, as such, no decree in respect of the suit shop could have been passed on the ground that the second respondent required it for expending his business The requirement, if any, ought to have been that of respondent No. 1 himself to sustain the impugned decree. His second contention is that the evidence produced by the parties does not justify a finding that respondent No 2 reasonably required the suit shop. Lastly, the learned counsel has contended that respondent No 2 having sold that machinery installed in his own shop to the said Abdul Gani Wadhera, his personal requirement,
