Dhan Raj vs Legal Rep. Of Nemi Chand & Ors

One Nemi Chand (now deceased) represented through

his legal representatives and the respondent in this

appeal took a shop from the father of the appellant on a

monthly rent of Rs.75/- in the year 1983 and executed a

tenancy agreement.

2. The appellant filed a suit for eviction on the

ground of bona fide need, default, non-user of the

2

premises and comparative hardship. The suit was decreed

by the learned Additional Civil Judge (Junior Division),

Barmer.

3. The respondent tenant, aggrieved by the said

judgment preferred an appeal before the learned

Additional District Judge, Barmer. The learned Additional

District Judge allowed the appeal which was upheld by the

High Court.

4. The appellant is aggrieved by the impugned judgment

of the High Court by which the High Court upheld the

judgment of the learned Additional District Judge,

Barmer. The appellant submitted that the First Appellate

Court and the High Court erred in setting aside a well-

reasoned judgment delivered by the learned Additional

Civil Judge (Junior Division) Barmer in Civil Suit No.41

of 1993.

5. The appellant submitted that the High Court and the

Additional District Judge did not take into consideration

the fact that the appellant has only this shop in

question in his name and he wants to start his business

independently. According to him, even the comparative

hardship issue ought to have been decided in his favour.

According to the appellant he cannot be forced to carry

3

on business jointly with his brother. The appellant also

submitted that with the passage of time, family has also

increased and it is difficult to run the business

jointly.

6. The appellant also submitted that the High Court

and the learned Additional District Judge failed to take

into consideration that the respondent has got another

shop at Village Fagalia.

7. The appellant further submitted that the respondent

in fact is not using the disputed shop regularly.

8. We have heard the learned counsel for the parties

at length. It is quite evident that the learned

Additional District Judge has not considered the case of

the appellant in proper perspective while reversing the

decree dated 30.11.1998 passed by the learned Additional

Civil Judge, Barmer and the High court erroneously upheld

the judgment in favour of the respondent.

9. On evaluation of pleadings, documents and evidence

on record, it is abundantly clear that the appellant has

a genuine and bona fide need of the shop in question to

carry on independent business.

4

10. The learned Additional District Judge did not

appreciate that the respondent has another ration shop at

Village Fagalia whereas the appellant has no other shop

from where he can carry on his business independently.

The appellant would have greater hardship if the said

shop is not made available to him. The issue of

comparative hardship ought to have been decided in favour

of the appellant.

11. The appellant cannot be forced to carry on business

jointly with his brother. Consequently, the judgment of

the High Court and the judgment of the learned Additional

District Judge, Barmer are set aside and the judgment of

the learned Additional Civil Judge, Barmer is restored.

12. On consideration of the totality of the facts and

circumstances and in the interest of justice, we deem it

appropriate to grant time upto 31st December, 2012 to the

respondents to vacate the premises in question upon

filing the usual undertaking in the registry of this

court within four weeks from today.

13. This appeal is allowed. The parties are directed to

bear their own costs.

5

.....................J (DALVEER BHANDARI)

.....................J (DEEPAK VERMA)

New Delhi;

July 5, 2011.