1. This Second Appeal arises out of the judgment and decree passed by learned First Additional District Judge, Jammu on October 31, 1984 dismissing the suit of the appellant for ejectment from the shop in dispute by reversing the judgment and decree passed by City Judge, Jammu in Civil Suit No. 50 of 1978 on July 6, 1984, whereby the suit of the plaintiff under section 11 (1) (h) of the j&k houses and shops rent control act, 1966 (hereinafter called the act) was decreed in favour of the present appellant.
2. The facts out of which the present appeal arises summarily stated are: That the appellant brought a suit for the ejectment of the shops situated at Moholla Lakhdata Bazar, Jammu against the respondent, which was rented out to him for a period of three months on March 3, 1975 at a monthly rent of Rs. 150/-. It is not disputed that after the said period of tenancy, respondent became month to month tenant. The appellant is a pensioner retired in October, 1974 and instituted a present suit on July 25, 1978 on the ground that he bonafidely and reasonably requires the suit shop for his personal use and occupation as he wants to start his own business therein. The respondent resisted the suit of the appellant on various grounds and contended that the suit is brought with ulterior motive to enchance the rent and denied the requirement of the appellant.
3. The learned trial court on the pleadings of the parties framed the following issues:-
1. Whether the plaintiff reasonably requires the suit shop for his personal use ? O.P.P.
2. Whether the requirement of the plaintiff is greater than that of the defendent ? O.P.P.
3. What are the comparative advantages and disadvantages to the parties in case of ejectment? O.P P.
4. Whether plaintiff has served the valid notice to quit upon the defendent? O.P.P.
5. To what relief plaintiff is entitled to? O.P.P. and an additional issue No. 1- A was framed on January 3, 1980 to the following effect ;-
'' Issue No. 1-A, In case issue No. 1 is proved in the affirmative whether partial eviction will meet the requirement of the plantiff ? O.P.P.
Learned trial court after trial found from the evidence adduced by the parties that the appellant plaintiff succeeded in proving the genuine requirement for the ejectment of the shop in question and also found that the comparative advantages are in favour of the appellant and the partial eviction of the shop will not meet the requirement of the appellant. The decree for ejectment against the respondent from the suit shop was, therefore, passed.
4. Respondent/tenant being aggrieved against the judgment and decree passed by the learned trial court preferred appeal before learned First Additional District Judge, Jammu, who by his judgment and decree impugned in the present Second Appeal reversed the findings arrived at by the learned trial court and dismissed the suit of the appellant/landlord.
5. In this Second Appeal, appellant attacked the findings arrived at by the learned First Additional District Judge on various grounds raising a substantial question of law as argued before me that merely because immediately after retirement landlord rented out the suit shop and later on wanted to establish his own business, can he be non-suited on the ground of delay in filing the suit of about 3 1/2 years: -
(A) Whether the Judgment and decree passed by the learned First Appellate Court ignores the mandatory provisions of Section 11 (1) (h) of the Act?
(B) Whether the judgment is not bad in law, when it is not based on no evidence but on surmises, conjectures and imagination?
(C) Whether the judgment is not had as to the interpretation to the relevant provisions relating to the reasonable requirement as per the learned First Additional District Judge are against the letter and spirit of the relevant provisions of the Act?
6. Learned counsel for the respondent strongly opposed the appeal and submitted that the findings arrived at by the learned first appellate court being purely findings of fact, the substantial questions of law demonstrated are nothing, but the question based on facts and cannot be regarded as the questions covered under Section 100 of the Code of Civil Procedure requiring interference by the High Court.
7. During the course of arguments, I was taken through the record and the judgment of the first appellate court as well as the trial court. It has been strenuously argued by learned counsel for the appellant that the approach of the learned first appellate court is contrary to law and the findings arrived at by him are vitiated by error of law and jurisdication. It is purely not even a question of law, but a substantial question of law that the learned first appellate court the final court of facts when dealing with an appeal shall have to discharge its pious duty in discussing the entire evidence on record in its right perspective and not to proceed on mere conjectures and surmises. In the instant case there being categorical and clear findings by the learned trial court based on evidence that the appellant/landlord in order to argument his source of Income being a pensioner getting only Rs. 276.15 paise per month requires the suit shop reasonably for his own occupation to start his business reversing that judgment and decree by the first appellate court merely on conjectures and surmises is liable to be set aside. It is also pointed out - that the learned first appellate court is much influenced by the fact that the landlord has not mentioned the exact nature of the business, which he wants to establish in the suit shop and that even after four years of his retirement appellant had not engaged himself in any work let alone in business. As against this there is a positive evidence on record which has been completely ignored by the learned first Additional-District Judge that the appellant started can-selling business in his own house and for that purpose he has taken Central Sales Tax and G.S.T. Nos and needed the suit shop to establish his business, which cannot be run properly in the residential house. In the plaint as well, it has been sufficiently pleaded by the appellant in paragraph 6 that he bonafidely and reasonably requires the shop under the tenancy of the defendant for his personal use and occupation as he wants to start his own business in the shop in dispute. The question, therefore, arises whether the law requires that the plaintiff should specifically plead the nature of the business, which he wants to commence in the suit shop and merely, because sometime is lapsed in instituting the suit for ejectment and the retirement of the landlord can a tenant defeat the need of the landlord on the ground of delay in filing the suit. This is to be scrutinised in the back ground of a retired Government Servant, who immediate after retirement is not in a position either to immediately get his pension or to collect money, to which he is entitled after putting a long service so as to commence his business immediately after retirement, some allowance is to be given to the landlord to argument his resources to commerce the business for which some capital investment is necessarily required. The Courts are required to see the bonafides of the landlord to occupy the premises and the circumstances whether the need is genuine and the landlord is in a position to occupy the premises and run the business. The findings of the learned first appellate court neither takes into account all the above aspects nor finds that on that count findings arrived at by the learned trial court are either assumptive or based on no evidence. Under the circumstances, the findings of the learned first appellate court are perverse and against the very spirit of law, cannot be regarded as findings of fact and liable to be set aside.
8. There is yet another inherent defect in approach and the judgment of the first appellate court that while discussing the arguments advanced by the counsel for the tenant while arguing the appeal before him, he has noted that the trial court did not advert to the subsequent development taken place during the pendency of the suit that the only son of the appellant/landlord able to secure the job and that the landlord having attained the age of around 65 years makes the requirement not only improbable, but also a little un-realistic. It is difficult to uphold such a finding, because Rent Control Legislation never intend that it any member of the family has started earnin the landlord himself debarred from starting his own business andgetg the ejectment of the suit premises for his personal occupation. I do not find that there is any improbability in running business by an old man specially the type of the business, which does not require any physical labour like the one in the present suit and for which the landlord is always at liberty to engage labour for running the business, that the advance age can be regarded as a disqualification for a landlord to get the ejectment. Learned counsel for the appellant placed reliance on a decision of Delhi High Court to support his contention reported in 1984 R.C.J. (2) 120 (B.B. Gandhi, Petitioner Vs. Dharam Inder Mohan and others, Respondents). Although suit was for ejectment of a house, but the principle laid down by His Lordship of the Delhi High Court is very much attracted in the instant case :-
“His desire to live in the premises in question on his retirement from Government service can by no stretch of reasoning be called malafide or fianciful; rather it was quite natural and genuine. "
The law does not require that a Government servant on superannuation must be on the road or at the mercy of someone else. He may justifiable seek eviction of his tenant through court ".
Reliance is also placed on A.I.R. 1979 S.C. 272 (Mst. Bega Begum and others, Appellants, Vs. Abdul Ahad Khan (dead) by L.R's and others. Respondents ) pointing out that where the Court below committed substantial and patent error of law in interpreting the scope and ambit of certain words in Section 11 (1) (h) of the Act, it is held by their Lordships in paragraph 27 of the Judgment : -
" The High Court as also the trial Court have made a legally wrong approach to this case and have committed a substantial and patent error of law in interpreting the scope and ambit of the words' reasonable requirement' and 'own possession appearing in Section 11 (1) (h) of the Act and have thus misapplied the law and overlooked some of the essential features of the evidence as discussed by us we had to enter into the merits of the case in order to prevent grave and substantial injustice being done to the appellants."
9. Applying the principle laid down by their Lordships of the Supreme Court in A.I.R. 1974 S.C. 272 (Supra) on the scope of interference, when the Court finds that it is necessary to prevent grave and substantial injustice being done to the appellants, the High Court can enter into the merits of the case. In that event looking to the approach of the learned first appellate court in the instant case, I find that if the findings arrived at by the learned first appellate court are allowed to stand, which are purely based on conjectures and surmises and against the provisions of Section 11 (1) (h) of the Act, substantial injustice will be caused to the appellant. This being purely a substantial question of law on which there are no contradictory findings that the landlord is a retired Government Employee getting a meagre pension and has no other accommodation of his own to establish or continue his business, there are justifiable grounds to interfere in the findings arrived at by the learned first appellate court and the appeal deserves to be allowed.
10. It is clearly deduced from the evidence on record that the appellant succeeded in proving his bonafide requirement to occupy the suit shop to run his own business, he can rot be non-suited merely, because he is of over 65 years of age and that his son got the job during the pendency of the suit, because those are not the considerations aimed at by law under section 11 (1) (h) of the Act to protect the tenant from eviction. The learned trial Court has also taken into account the comparative advantages and disadvantages and found on evidence that the tenant/respondent, who is running the business, who is rolling in lacs on any shop in the City, he has in his possession three garages situated on the ground floor of his house. Considering the nature of the business, which the appellant wants to start in the suit premises partial eviction will also not meet the requirement of the landlord/appellant, hence the judgment and decree passed by the learned trial Court deserves to be confirmed and the judgment and decree passed by the learned first appellate court is here by set aside being vitiated by error of law and jurisdiction.
11. The appeal, therefore, succeeds, the judgment and decree passed by the first Additional-District Judge, Jammu impugned in this Second Appeal is hereby set aside and the judgment and decree passed by the learned trial Court for ejectment of the respondent from the suit shop is hereby confirmed. However, suit shop being the business premises, a time of three months is granted to the respondent/tenant to vacate the suit premises and hand-over the vacant possession to the appellant/landlord after the expiry of the said period, the decree-holder shall be entitled to execute the decree. The respondent shall pay the cost of the appellant in this Court as well as of the first appellate Court. Decree be drawn up accordingly. Record be sent back.