UDAY SHANKAR UPADHYAY & ORS.versusNAVEEN MAHESHWARI

                    [2009] 15 (ADDL.) S.C.R. 1002


A                UDAY SHANKAR UPADHYAY & ORS.
                                  v.                                       '>·   '".

                      NAVEEN MAHESHWARI
                   (Civil Appeal No.5888 of 2006)
                         NOVEMBER 18, 2009
B
           [MARKANDEY KATJU AND R.M. LODHA, JJ.]

         RENT CONTROL AND EVICTION:

          Bona fide need - Suit for eviction on ground of bona fide
    need of landlord to start business for his major sons - Decreed
c   by trial court, but dismissed by first appellate court.1and High
    Court holding that the proposed business could be started on
    First Floor-Held: The finding of fact recorded by trial court that
    sons of the plaintiff bona fide wanted to start their own business
    separately, has not been disturbed in appeal - Court cannot
D   dictate to the landlord which floor he should use for his
    business; that is for the landlord himself to decide - 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 view of the courts below
E   that the sons of the plaintiff should do business on the first floor
    which is being used for residential purpose was wholly arbitrary
    and, therefore, cannot be sustained - The finding that the sons
    of plaintiff are getting salary from the firm is wholly irrelevant
    and such fact was wrongly taken into consideration by the High
    Court- Judgments of High Court as well as first appellate court
F   set aside and that of the trial court restored.

         CIVIL APPELLATE JURISDIC.110N: Civil Appeal No. 5888
    of 2006.                       '
        From the Judgmcmt & Order dated 06.10.2005 of the High
G   Court of Madhya Pradesh, Bench at Gwalior in S.A. No. 107 of
    2004.
        A.K. Chitale, Niraj Sharma, Sumlt Kumar Sharma for the
    Appellants.,

H                                  1002
             UDAY SHAN KAR UPADHYAY & ORS. v. NAVEEN                       1003
                           MAHESHWARI
              P.P. Singh Akshat Shrivastava, lnderjeet Yadav, for the               A
-.. ..    Respondent.
  I
               The following Order of the Court was delivered
                                        ORDER
               1. 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.
               2. Heard learned counsel for the parties and perused the
          record.
                3. 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.
              4. The facts have been mentioned in the judgments of the
                                                                                    0
          courts below and hence we are not repeating the same here.
                5. 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.
               6. 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.
               7. 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.·                                           /) ·,
                8. 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.
        9. The appellants filed a second appeal which has been
B   dismissed by the impugned judgment and hence this appeal.
         10. 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.
E        12. 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.
          13. 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.
          14. 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.