UDAY SHANKAR UPADHYAY & ORS. v. NAVEEN MAHESHWARI

The following Order of the Court was delivered ORDER

1Copy pinpoint1. This appeal has been filed against the impugned judgment and order of the Madhya Pradesh High Court dated B 6.10.2005 in Second Appeal No. 107 of 2094.

2Copy pinpoint2. Heard learned counsel for the parties and perused the record.

3Copy pinpoint3. The Landlord-appellant filed a suit for eviction of the tenant C from the shop in question on the ground that he needs the shop for setting· up the business of his two sons viz. Nischal Upadhyay and Bhaskar Upadhyay, and there is no other suit-able accommodation for the said purpose.

4Copy pinpoint4. The facts have been mentioned in the judgments of the 0 courts below and hence we are not repeating the same here.

5Copy pinpoint5. The plaintiffs/appellants filed the suit for eviction against the tenant stating inter alia, that the shop in dispute (which is on . the ground floor) is required for starting the business of Nischal Upaqhyay and Bhaskar Upadhyay, major sons of plaintiff No. 1. E The trial court by judgment dated 8.10.2002 found that the need of the landlord was bona fide and decreed the suit.

6Copy pinpoint6. Before the trial court the tenants had taken the plea that the plaintiffs have alternative accommodation which is a hall over the suit shop, and hence the sons of plaintiff No. 1 can carry on business there. However, the trial court held that the said hall on F the first floor is a residential accommodation and the plaintiffs have no suitable accommodation for doing business.

7Copy pinpoint7. Against the judgment of the trial court, the defendant filed an appeal which has been allowed by the first appellate court by judgment dated 19.1.2004, true copy of the said judgment is at G Annexure P-2. The first appellate court held that the hall above the suit shop is a suitable alternative accommodation and it can be used for non-residential purpose. Hence the first appeal was allowed.· /) ·,

8Copy pinpoint8. It may be noted that the first appellate court has not held H

1·004 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A that the sons of plaintiff No. 1 do not have bona fide need of some premises for doing their business. All that it held was that the ~ .. · alternative accommodation on the first floor which is a hall can be used for doing business.

9Copy pinpoint9. The appellants filed a second appeal which has been B dismissed by the impugned judgment and hence this appeal.

10Copy pinpoint10. Thus the fact as found by the trial court is that the sons of plaintiff No. 1 bona fide want to start their own business separately, and this finding has not been disturbed in appeal.

c 11. In our opinion, once it is not disputed that the landlord is in bona fide need of the premises, it is not for the courts to say that he should shift to the first floor or any higher floor. It is well- known that shops and businesses are usually (though not invariably) conducted on the ground floor, because the customers can reach there easily. The court cannot dictate to the landlord 0 which floor he should use for his business; that is for the landlord himself to decide. Hence, the view of the courts below that the . sons of plaintiff No. 1 should do business on the first floor in the hall which is being used for residential purpose was, in our opinion, wholly arbitrary, and hence cannot be sustained.

12Copy pinpoint12. As regards the finding that the sons of plaintiff No. 1 are getting salary of Rs. 1500/- from the firm, in our opinion, this is wholly irrelevant and was wrongly taken into consideration by the High Court.

13Copy pinpoint13. For the reasons given above, the judgments of the High F Court and the first appellate court are set aside and that of the trial court is restored. The appeal stands allowed. No costs.

14Copy pinpoint14. However, the respondent is granted one year's time to vacate the shop in dispute on furnishing the usual undertaking within six weeks from the date of this order. The respondent shall, however, continue to pay the rent during this period. R.P. Appeal allowed.