Jammu & Kashmir High Court
Sham Lal vs Omkar Nath Gupta on 11 July, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 01.06.2025
Pronounced on: 11.07.2025
RSA No. 10/2022
CM (4931/2022 (6619/2022)
CAV no. 960/2022
Sham Lal
...Petitioner(s)/Appellant(s)
Through: Mr. K. Nirmal Kotwal, Advocate.
V/s
Omkar Nath Gupta
.... Respondent(s)
Through: Mr. Sunny Mahajan, Advocate
CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.
JUDGMENT
Per-Oswal, J
1. This Civil Second Appeal is directed against the judgment and decree dated
18.07.2022 passed by learned Additional District Judge, Udhampur
(hereinafter referred to as “the appellate court’) whereby the judgment and
decree dated 21.08.2019 passed by learned Sub-Judge (Special Mobile
Magistrate), Udhampur (hereinafter referred to as “the trial court”) has been
set aside with a direction to the appellant to vacate the suit shop.
2. Vide order dated 24.05.2023, this appeal was admitted for final hearing on
the following substantial questions of law:-
(1) “Whether the appellate court grossly erred by not allowing the
appellant herein to lead additional evidence on the question of
extinguishment of ground of personal necessity qua the shop in
question owing to becoming available of another shop belonging to
the plaintiff/respondent herein during the pendency of the appeal?”
(2) “Whether the appellate court misdirected itself in respect of the
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plaintiff/respondent herein in the suit, qua the shop in question
while reversing the judgment and decree of the trial court, perverse
to the evidence on record?”
3. Before this court proceeds ahead to adjudicate upon the above mentioned
substantial questions of law, it would be appropriate to have the factual
matrix of the case.
Factual matrix:
4. The suit for ejectment of the appellant from the single storey shop
(hereinafter referred to as “suit shop” as described the plaint) was preferred
by the respondent/landlord-Dharam Paul (now deceased) on 29.03.2011 by
pleading that the suit shop was in possession of the father of the appellant
herein, namely-Sansar Chand and after his death, a rent deed was executed
by mother of the appellant and after her death, the tenancy has been
inherited by her legal heirs as joint tenants and defendant-appellant herein
has executed a rent deed on 16.09.2007 on a monthly rent of Rs.500/-. The
eviction of the appellant was sought by the original respondent-landlord on
the ground of settling his unemployed graduate grandson, namely-Mantesh
Mahajan who was 21 years of age at the time of filing of the suit. It was
pleaded by the respondent that the appellant besides having business in the
suit shop was also having a toffee factory in Gali Sitla Mandir, where he was
conducting the business along with his other brothers. It was also pleaded
that the appellant was having another vacant shop, lying closed in Sitla
Mandir Gali, Udhampur.
5. The appellant after causing appearance before the learned trial court
admitted the tenancy, but, objected to his eviction from the suit shop on the
grounds, inter alia that the grandson of the respondent was already
conducting his business with his father in a shop under the name and style of
M/s Chukarna Cloth House, Udhampur and it was duty of the father of
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Mantesh Mahajan to look after and adjust his son and not that of deceased
respondent. It was also pleaded that respondent is owner of nine shops
including the suit shop situated in Udhampur town and 30 ft. x 28 ft. khola
of two shops. Six shops including the suit shop, had been rented and two
shops were lying vacant. One shop was rented out to Ashfaq Chandel in
September-October, 2010 and if the respondent was so keen to adjust his
grandson in independent business, he could have easily adjusted him in the
said shop, as he had already completed his studies and was conducting
business with his father in the shop situated at Main Bazar, Udhampur under
the name and style of M/s Chukarna Cloth House, Udhampur. It was also
pleaded that the toffee factory was owned by his brother Vijay Kumar, who
was running an independent business with which the appellant had no
concern. The appellant also denied to have any shop in the Shitla Mandir
Gali, Udhampur, as claimed by the respondent. It was further stated that the
factory and the shop were owned by Vijay Kumar and were in his exclusive
possession.
6. Vide order dated 17.12.2010, the following issues were framed by the trial
court for its adjudication:-
(1) Whether the suit shop is reasonably and bonafidely required by the
plaintiff for the use and occupation of his grandson Mantesh
Mahajan? OPP
(2) What are the comparative advantages and disadvantages to the parties
in case of ejectment? OPP
(3) Whether the need of the plaintiff can be met by way of partial
eviction? OP parties.
7. During trial of the suit, a written statement came to be amended by the
appellant as during the pendency of the suit, one of the shops owned by
respondent, which was under the occupation of Rajinder Kumar son of Ved
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Parkash as a tenant was vacated by him and the same was lying vacant since
then. It was contended by the respondent that if the respondent had any
genuine and bonafide need of the shop, he could have adjusted his grandson
in the aforesaid shop, which was vacated during the pendency of the suit.
8. The respondent-Dharam Paul (now deceased) besides examining himself has
also examined PW- Mantesh Mahajan, PW-Koushal Gupta, PW- Yash Paul
Khanna in support of his case whereas, appellant-Sham Lal besides himself
also examined DW- Anil Kumar, DW-Jugal Kishore Kalsotra, DW- Chaman
Lal Verma, DW- Naresh Kumar, DW-Rakesh Kumar Gupta, DW- Ajay
Kumar, DW- Girdhari Lal Pachaila and DW Joginder Kumar in support of
his case.
9. Vide judgment and decree dated 21.08.2019, learned trial Court dismissed
the suit, which came to be challenged through the medium of civil first
appeal and the learned appellate court vide its judgment and decree
impugned in this appeal decreed the suit by reversing the findings returned
by the learned trial court and directing the eviction of appellant from the suit
shop.
Arguments:
10. Learned counsel for the appellant has argued that learned appellate court was
required to consider and decide the application filed by the appellant under
Order 41 Rule 27 CPC for leading additional evidence for bringing on
record the subsequent event in the form of vacation of one shop owned by
the respondent, before deciding the appeal, but the appellate court did not
consider and decide the said application independently and allowed the main
appeal preferred by the respondent without affording opportunity to the
appellant to lead additional evidence in support of his claim. He also argued
that the respondent was having one vacant shop, which he let out to one
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Ashfaq Chandel in the month of September-October 2010 and the
respondent could have easily adjusted his son in the said shop and further
even during the pendency of the suit, one shop was vacated, but still the
respondent did not adjust his grandson in the said shop. He has placed
reliance upon the judgments of the Hon’ble Supreme Court of India in case
titled Muzaffar Ali Vs. Dasaram reported in (2009) 2 SCC 654, North
Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) By
Lrs. reported in (2008) 8 SCC 511 and Jagdish Singh Vs. Madhuri Devi
reported in 2008 AIR (SC) 2296.
11. Per contra, learned counsel for the respondent has argued that the learned
appellate court has rightly considered the application filed by the appellant
under Order 41 Rule 27 CPC while hearing and deciding the main appeal
and has acted in accordance with the mandate of judgment of the Hon’ble
Supreme Court of India in case titled Union of India Vs. Ibrahim Uddin
and another reported in 2012 (8) SCC 148. He also argued that the shop
which was vacated during the pendency of the suit was offered to the
appellant, but he refused to accept the shop as the size of the shop was very
small. He has laid much stress that mere availability of alternative
accommodation is not sufficient to disentitle the landlord from getting the
shop vacated as the alternative accommodation must be suitable for
satisfying the requirement of the landlord and further that it is the sole
prerogative of the landlord to choose the premises from where he intends to
conduct the business and tenant has no right to dictate the landlord to run the
business from a particular place. He has also placed reliance upon the
judgments of the Hon’ble Supreme Court of India in case titled Anil Bajaj
and another Vs. Vinod Ahuja reported in 2014 AIR (SC) 2294, Kanahiya
Lal Ara Vs. MD Ehshan and others decided 25th Feb.2025 in Civil Appeal
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arising out of SLP(C) No. 21965 of 2022, Balwant Singh @Bant Singh
and another Vs. Sudarshan Kumar and another reported in 2021 15 SCC
75, Hukum Chandra (D) through Lrs Vs. Nemi Chand Jain and others
reported in 2019 13 SCC 363 and Akhileshwar Kumar and others Vs.
Mustaqim and others reported in 2003 AIR (SC) 532.
12. Heard learned counsel for the parties and perused the record.
13. Now this court would proceed to answer the substantial questions of law one
by one.
Analysis:
Substantial question of Law No.1
“Whether the appellate court grossly erred by not allowing the
appellant herein to lead additional evidence on the question of
extinguishment of ground of personal necessity qua the shop in
question owing to becoming available of another shop belonging
tothe plaintiff/respondent herein during the pendency of the
appeal?”
14. It was vehemently argued by learned counsel for the appellant that learned
first appellate court has not permitted the appellant to lead evidence in
respect of the subsequent event of vacation of one shop during the pendency
of the appeal and it was incumbent upon the appellate court to first decide
the application filed by the appellant for leading additional evidence and
then to adjudicate upon the main appeal.
15. In order to consider this issue raised by the appellant, it is appropriate to
extract Order 41 Rule 27 CPC, which is as under:-
27. Production of Additional Evidence in Appellate Court.
(1) The parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the appellate Court, But if-
(a) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that
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within his knowledge or could not, after the exercise of due diligence,
be produced by him at the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to be produced or any
witness to be examined to enable it to pronounce judgment, or for any
other substantial cause, the Appellate Court may allow such evidence
or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its admission.
16. It goes without saying that leading oral or documentary evidence at the
appellate stage is permissible only under the circumstances envisaged under
Order 41 Rule 27 CPC which are as under:
(i) Where the court from whose decree the appeal has been preferred, has
refused to admit evidence;
(ii) Where the evidence sought to be produced despite exercise of due
diligence evidence,was not within his knowledge or could not after
the exercise of due diligence be produced by him at the time when the
decree was passed;
(iii) Where the appellate court requires any document to be produced or
any witness to be examined to enable it to pronounce judgment, or for
any other substantial cause.
17. So far as the case at hand is concerned, record depicts that during the
pendency of the appeal, an application under Order 41 Rule 27 CPC was
filed by the appellant for permission to lead additional evidence on the
ground that the respondent had let out one shop having dimension of 10 ft x
12 ft at Lambi Gali Ward No. 10, Udhampur to Nazir Ahmed hailing from
Kashmir. The said shop was closed for few months. The appellant was under
the impression that the tenant might have left to attend his domestic
engagement, but, on 20.03.2022 he saw that shop opened with few cosmetics
products, and one Rajesh Kumar was running the shop. It was contended by
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the appellant that respondent did not utilize the shop to adjust his grandson,therefore, a sham need was projected by the respondent for evicting the
appellant. The said application was objected to by the respondent by
asserting that the said shop is in a narrow lane and not suitable for
conducting the business of readymade garments whereas the suit shop is
situated in main market, which is much bigger in size and it was also stated
by the respondent that the plea as to the availability of the alternative
accommodation was already dealt by the learned trial Court and the
appellant had rejected the offer of the respondent for exchange of the suit
shop with vacated shop. It was also averred in the objections that the
appellant had refused to shift his business from the suit shop to another place
situated at Lambi Gali, Udhampur, therefore, the application for leading
additional evidence is totally misconceived and devoid of any merit.
18. This is the admitted case of the parties that the suit shop is situated at Main
Bazaar whereas the shops vacated during the pendency of the suit and appeal
are situated in Lambi Gali, Udhampur, and before the trial court it was stated
by the respondent-Dharm Paul (now deceased) that the appellant was offered
the vacated shop during the pendency of the suit, but, the said offer was not
accepted by him on the ground that he could not run his Karayana business
in the said shop. The appellate court while deciding the appeal has also
rejected the application on the ground that the application has been filed just
to prolong the litigation.This Court does not find any infirmity on the part of
the first appellate court while rejecting the application filed by the appellant
under Order 41 Rule 27 CPC. The contention of the appellant that learned
first appellate Court ought to have decided the application filed by the
appellant under Order 41 Rule 27 CPC at the first instance and thereafter
ought to have proceeded to decide the main appeal, is misconceived. The
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Hon’ble Supreme Court of India in Union of India Vs. Ibrahim Uddin andanother reported in (2012) 8 SCC 148 in paragraph No. 41 has held as
under:-
“41. Thus, from the above, it is crystal clear that application for
taking additional evidence on record at an appellate stage, even if
filed during the pendency of the appeal, is to be heard at the time
of final hearing of the appeal at a stage when after appreciating the
evidence on record, the court reaches the conclusion that
additional evidence was required to be taken on record in order to
pronounce the judgment or for any other substantial cause. In
case, application for taking additional evidence on record has been
considered and allowed prior to the hearing of the appeal, the
order being a product of total and complete non-application of
mind, as to whether such evidence is required to be taken on
record to pronounce the judgment or not, remains
inconsequential/inexecutable and is liable to be ignored.”
19. The judgment relied upon by learned counsel for the appellant in Muzaffar
Ali Vs. Dasaram reported in (2009) 2 SCC 654 is not applicable in the
present facts and circumstances of the case because in the said case, High
Court had not considered the order of the appellate court wherein, the
application filed by the appellant therein before the appellate court under
Order 41 Rule 27 CPC was rejected. This court has carefully considered and
dealt with the observations made by the learned appellate court while
rejecting the application preferred by the appellant. So far as other judgment
of the Hon’ble Supreme Court of India in case titled North Eastern
Railway Administration, Gorakhpur Vs. Bhagwan Das (D) By Lrs.
(2008) 8 SCC 511 is concerned, while reiterating the circumstances under
which additional evidence can be adduced under Order 41 Rule 27 CPC, it
was observed that the High Court was not even aware of the pendency of the
application under Order 41 Rule 27 CPC seeking leave to adduce additional
evidence. Thereafter, Hon’ble Supreme Court of India proceeded to remit
the matter back to the High Court to take fresh decision on the application
preferred by the appellant under Order 41 Rule 27 CPC and under Order 6
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Rule 17 CPC and thereafter form its opinion afresh on the merit of the
second appeal.
20. Both these judgments relied upon by learned counsel for the appellant do not
support the case of the appellant.
21. In view of above, this court is of the considered view that the learned
appellate court has rightly decided the application seeking leave to lead
additional evidence along with the appeal, particularly, when a similar
subsequent event, which arose during the pendency of the appeal, had also
arisen during the pendency of the suit before the learned trial court.
Allowing such application to lead additional evidence would have resulted
in duplication of evidence, particularly when the appellant had already
refused to exchange the vacated shop with the suit shop. The substantial
question of law No.1 is answered accordingly.
Substantial question of Law No.2
“Whether the appellate court misdirected itself in respect of
the ground of genuine need pressed into service by the
plaintiff/respondent herein in the suit, qua the shop in
question while reversing the judgment and decree of the trial
court, perverse to the evidence on record?”
22. As already mentioned above, the respondent had sought eviction of appellant
from the suit shop on the ground of setting up of an independent business for
his grandson, namely Mantesh Mahajan. The suit was objected to by the
appellant on the ground that grandson of the respondent was already
conducting business with his father in a shop under the name and style of
M/S Chukrana Cloth House, Udhampur. It was also contended that the
respondent was owner of the nine shops including the suit shop situated at
Udhampur town as well as a 30 ft x 28 ft khola of two shops. As already
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mentioned above, the appellant also objected to his eviction from the suit
shop on the grounds that one shop was rented out by the respondent in
September-October 2010 to one Ashfaq Chandel where respondent could
have easily adjusted his grandson and that during the pendency of the suit,
one shop was vacated. This shop, as per the respondent, was offered to the
appellant as admitted by him during his cross-examination for exchange
with the suit shop, but the offer made by the respondent was declined by the
appellant. Precisely, the claim made by the respondent for eviction of the
appellant from the suit shop was objected to on the ground of availability of
alternative accommodation with the respondent. It is worthwhile to mention
here that the appellant-Sham Lal has stated in his testimony before learned
trial Court that grandson of the respondent-Mantesh Mahajan had opened a
show room about 6 to 7 months ago. He also admitted that he was offered an
exchange of the suit shop with a vacant shop, but he declined the offer on
the ground that he could not run his Karayana business in the said shop.
Respondent witness-Mantesh Mahajan, for whom the eviction of the
respondent from suit shop is being sought, categorically stated that he
intended to open a showroom of readymade garments and it was not possible
for him to do same in the shop fallen vacant in Lambi Gali, Udhampur. In
contrast, the suit shop is situated in Main Bazaar, Udhampur where number
of showrooms are already established. He also denied the suggestion made
by the appellant that he was conducting any business in the shop situated in
Main Bazaar, Udhampur. He admitted that he tried to start his business in
the shop fallen vacant in Lambi Gali, Udhampur, but the size of the shop
was very small. It has come in evidence of respondent that all the six shops
near City School have already been let out and the shop situated in Arya
Samaj Gali is owned by his son, namely, Deepak Kumar. PW-Mantesh
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Mahajan has stated that the respondent and his father i.e. father of Mantesh
Mahajan, were jointly running the business under the banner of M/S
Chukarana Cloth House and there is no shop in front of M/S Chukrana Cloth
House owned by the respondent. Rather, it is owned by his uncle, Deepak
Kumar Gupta, who is now deceased and his Aunt has been running a
business of readymade garments in the said shop for the last two years.
Respondent witnesses- Koushal Gupta and Yash Paul Khanna examined by
the respondent also deposed in a manner similar to PW- Matesh Mahajan
and PW- Dharam Paul.
23. The appellant-Sham Lal in his testimony has stated that if the respondent
was genuinely interested in adjusting his grandson, he could have easily
adjusted him in the shop, let out by the respondent in the month of
September-October, 2010 to one Ashfaq Chandel and further that he (the
appellant) had no other business except the one being carried out in the suit
shop. He asserted that the toffee factory was owned by Vijay Kumar and
denied having any shop in Sitala Mandir Gali, Udahmpur, as alleged by
respondent. However, in cross-examination, he admitted that the land
whereupon the toffee factory had been established was purchased by him in
the year 1986-87 along with his brother Gopal Krishan. He along with his
brother Madan Lal was jointly running the business in the suit shop owned
by the respondent. DW Anil Kumar though deposed in a manner similar to
the appellant, but, admitted that he did not know the family background of
the respondent, and that Mantesh Mahajan was conducting the business with
his father in the shop under the name and style of M/S Chukrana Cloth
House. All other witnesses of the appellant, namely-Jugal Kishore, Chaman
Lal Verma, Naresh Kumar, Rakesh Kumar Gupta, Ajay Kumar, Girdhari Lal
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Pachaila and Joginder Kumar have also deposed on similar lines as that of
Sham Lal and Anil Kumar.
24. The learned trial Court, after considering the evidence led by the parties,
arrived at the conclusion that if the grandson of the respondent was so keen
and eager to start his own independent business, he would have in all
probabilities started the same the moment any shop fell vacant. It was
observed by the learned trial Court that two shops became available at
different occasions to the grandson of the respondent, but he did not start
any independent business, whereas on the other hand, the appellant does not
own any shop and he and his brother Madan Lal are solely dependent on the
earnings from the suit shop. With these observations, the learned trial court
decided issue No. 1 in favour of the appellant and against the respondent.
25. The appellate court, after considering the evidence led by the parties,
observed that the respondent is the owner of six shops situated in Lambi
Gali, but let out to different tenants. In another shop, the respondent is
running the business under the banner of M/S Chukrana Cloth House and
shop in front of M/S Chukrana Cloth House has been gifted to his son
Deepak Kumar by his father.
26. From the evidence brought on record, it is evident that the respondent owned
eight shops i.e. six shops situated in Lambi Gali, Udhampur and one shop
where the respondent had been running the business along with his son
Omkar Nath. Another shop owned by him is a suit shop which is under the
use and occupation of the appellant. Besides these, he also owns a Khola of
30 ft x 28 ft near Gali Gita Bhawan. PW- Mantesh Mahajan has stated that
one shop measuring 6-1/2 ft x 12ft had been vacant and was offered to the
appellant in lieu of suit shop, however, he refused to accept the same. He
further stated that it was not possible for him to start a business in the shop
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fallen vacant in Lambi Gali as the suit shop is measuring 12 ft x 20 ft
situated in Main Bazaar Udhampur where many showrooms are already
established. He expressed his intention to open a business and categorically
stated that suit shop in Lambi Gali was too small, and he even tried to open
the business in the shop that had fallen vacant in Lambi Gali, but found it
unsuitable due to its small size. While deciding issue no. 1 in favour of
respondent and against the appellant, the learned appellate court has made
the following observations:
“26. Thus, by applying the test of preponderance of
probability it emerges from the evidence adduced by the
parties that the grandson of the appellant/plaintiff has done
his BCA in the year 2010 who is un-employed and requires
the suit shop for conducting the independent business of
readymade garments. It has not come in the statement of
respondent or any other witnesses that the appellant has
filed the suit for eviction with some oblique motive to get
the rent enhanced or after getting the suit premises vacated
to let out the same to 3rd party for obtaining pagri or more
rent. The requirement of the grandson of the
appellant/plaintiff is natural, genuine, real, sincere and
honest. Since, the plaintiff/appellant require the suit shop
for the member of his family, therefore, his requirement is
bonafide nor a mere pretext to evict the respondent.
27. It is settled legal position that if the requirement of
landlord is bonafide he has right to chose the premises
where from he has to conduct the business. The
defendant/respondent has no right to dictate the
plaintiff/appellant that what type of business and wherefrom
the grandson of the plaintiff should do the business.”
27. It has come on record that both the shops situated in Lambi Gali, Udhampur,
which had fallen vacant at different times, were not suitable for running the
business of readymade garments, whereas the suit shop is situated in
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Chabutra Bazar Udhampur, which is the main market where number of
showrooms are already established. That location is evidently more suitable
for operating the showroom of readymade garments. The appellant-tenant
cannot dictate the respondent-landlord where and how to accommodate his
grandson at a particular place. The unsuitability of the vacant shop(s) for
running the business was established by none other than the appellant-tenant
himself, when he declined to exchange the shop situated in Lambi Gali with
the suit shop on the ground that karayana business could not be run in the
said shop. If the appellant himself found the said shop unsuitable for running
the Karyana business, it logically follows that running the showroom of
readymade garments in the said shop would be more impracticable. This
court has no hesitation in holding that the respondent has been able to
establish the bonafide requirement of the suit shop for setting up a business
of readymade garments in the suit shop situated in Main Bazar. In this
context, it would be appropriate to take note of various judicial precedents
which are as under:
a. In Anil Bajaj v. Vinod Ahuja, 2014 AIR(SC) 2294, the Hon’ble Supreme
Court of India has held as under:
6. In the present case it is clear that while the landlord (Appellant 1) is
carrying on his business from a shop premise located in a narrow lane,
the tenant is in occupation of the premises located on the main road
which the landlord considers to be more suitable for his own business.
The materials on record, in fact, disclose that the landlord had offered to
the tenant the premises located in the narrow lane in exchange for the
tenanted premises which offer was declined by the tenant. It is not the
tenant’s case that the landlord, Appellant 1, does not propose to utilise the
tenanted premises from which eviction is sought for the purposes of his
business. It is also not the tenant’s case that the landlord proposes to rent
out/keep vacant the tenanted premises after obtaining possession thereof or to
use the same is any way inconsistent with the need of the landlord. What the
tenant contends is that the landlord has several other shop houses from
which he is carrying on different businesses and further that the
landlord has other premises from where the business proposed from the
tenanted premises can be effectively carried out. It would hardly require
any reiteration of the settled principle of law that it is not for the tenant
to dictate to the landlord as to how the property belonging to the
landlord should be utilised by him for the purpose of his business. Also,
the fact that the landlord is doing business from various other premises
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cannot foreclose his right to seek eviction from the tenanted premises so long
as he intends to use the said tenanted premises for his own business.
(emphasis added)
b. In Kanahaiya Lal Arya v. Mohd. Ehshan, 2025 SCC OnLine SC 432, the
Hon’ble Supreme Court of India has observed as under:
10. The law with regard to eviction of a tenant from the suit premises on the
ground of bona fide need of the landlord is well settled. The need has to be a
real one rather than a mere desire to get the premises vacated. The landlord
is the best judge to decide which of his property should be vacated for
satisfying his particular need. The tenant has no role in dictating as to
which premises the landlord should get vacated for his need alleged in
the suit for eviction.
(emphasis added)
c. In Akhileshwar Kumar v. Mustaqim, (2003) 1 SCC 462, it has been held as
under:
3. In our opinion, the approach adopted by the High Court cannot be
countenanced and has occasioned a failure of justice. Overwhelming
evidence is available to show that Plaintiff 1 is sitting idle, without any
adequate commercial activity available to him so as to gainfully employ
him. Plaintiff 1 and his father both have deposed to this fact. Simply
because Plaintiff 1 is provisionally assisting his father in their family
business, it does not mean that he should never start his own
independent business. What the High Court has overlooked is the evidence
to the effect, relied on by the trial court too, that the husband of Plaintiff 4 i.e.
son-in-law of Ram Chandra Sao, was assisting the latter in his business and
there was little left to be done by the three sons.
4. So is the case with the availability of alternative accommodation, as opined
by the High Court. There is a shop in respect of which a suit for eviction was
filed to satisfy the need of Plaintiff 2. The suit was compromised and the
shop was got vacated. The shop is meant for the business of Plaintiff 2. There
is yet another shop constructed by the father of the plaintiffs which is situated
over a septic tank but the same is almost inaccessible inasmuch as there is a
deep ditch in front of the shop and that is why it is lying vacant and
unutilized. Once it has been proved by a landlord that the suit
accommodation is required bona fide by him for his own purpose and
such satisfaction withstands the test of objective assessment by the court
of facts then choosing of the accommodation which would be reasonable
to satisfy such requirement has to be left to the subjective choice of the
needy. The court cannot thrust its own choice upon the needy. Of course,
the choice has to be exercised reasonably and not whimsically. The
alternative accommodations which have prevailed with the High Court
are either not available to Plaintiff 1 or not suitable in all respects as the
suit accommodation is. The approach of the High Court that an
accommodation got vacated to satisfy the need of Plaintiff 2, who too is an
educated unemployed, should be diverted or can be considered as a relevant
alternative accommodation to satisfy the requirement of Plaintiff 1, another
educated unemployed brother, cannot be countenanced. So also considering a
shop situated over a septic tank and inaccessible on account of a ditch in front
of the shop and hence lying vacant, cannot be considered a suitable
alternative to the suit shop which is situated in a marketing complex, is easily
Mohammad Yaseen Dar
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RSA 10 of 2022 Page 16 of 20
accessible and has been purchased by the plaintiffs to satisfy the felt need of
one of them.
(emphasis added)
d. In Dhannalal v. Kalawatibai, (2002) 6 SCC 16, it has been observed as
under:
27. So far as the challenge to proof of requirement is concerned it merits a
summary dismissal. The Rent Controlling Authority and the High Court, both,
have on a meticulous evaluation of evidence found the requirement proved.
None of the landlords is possessed of any other suitable alternative
accommodation of his or her own to satisfy the requirement found proved. A
landlord cannot be compelled to carry on business in rented premises and the
proved requirement cannot be defeated by the tenant submitting that the
landlord can start or comfortably continue to run his business in rented
premises. It has come in evidence that the landlords have secured possession
of some premises in Ahilyapura locality situated at a short distance from the suit
premises but the Ahilyapura accommodation is again a tenanted
accommodation and hence irrelevant for defeating the claim of the landlords. To
be an alternative accommodation relevant within the meaning of Section 12(1)(f)
or Section 23-A(b), it must be “of his own”, that is, the one “owned” by the
landlord. Another alternative accommodation pointed out by the tenant is the
one situated on the first floor of the building. It has come in the evidence that the
second floor of the building is used for residence of the landlords while the first
floor is used partly as a godown and partly for stitching clothes which are sold as
ready-made garments in the shop of Respondent 3. To amount to an alternative
non-residential accommodation so as to defeat the requirement of the landlord
for the suit premises, it should be a reasonably suitable non-residential
accommodation. It should be suitable in all respects as the suit accommodation
is. In Shiv Sarup Gupta v. Dr Mahesh Chand Gupta this Court has held that an
alternative accommodation, to entail denial of the claim of the landlord, must be
reasonably suitable, obviously in comparison with the suit accommodation
wherefrom the landlord is seeking eviction. The availability of another
accommodation, suitable and convenient in all respects as the suit
accommodation, may have an adverse bearing on the finding as to the bona
fides of the landlord if he unreasonably refuses to occupy the available premises
to satisfy his alleged need. The bona fides of the need of the landlord for the
premises or additional premises have to be determined by the court by
applying objective standards and once the court is satisfied of such bona
fides then in the matter of choosing out of more accommodations than one
available to the landlord, his subjective choice shall be respected by the
court. For the business, which Respondents 2 and 3 propose to start or
continue respectively, an accommodation situated on the first floor cannot
be said to be an alternative suitable accommodation in comparison with
the shops situated on the ground floor. A shop on the first floor cannot
attract the same number of customers and earn the same business as a
shop situated on the ground floor would do. Moreover, there is no
evidence adduced by the appellants to show that in M.T. Cloth Market,
shops are also situated on the first floor of buildings and attract the same
business as the shops on the ground floor do. The High Court and the RCA
have held that none of the premises pointed out by the appellant tenants was
such alternative accommodation as may defeat the respondents’ claim. We find
no reason to take a different view. Between the years 1987 and 1989 late
Krishnadas, the then sole owner of the building, had sold three shops but that
was an event which had taken place in the lifetime of late Krishnadas and
cannot have relevance for denying the claim of the respondent landlords filed in
the year 1995.
(emphasis added)
28. So far as the issue of comparative advantages and disadvantages is
concerned, it is evident that the suit shop was earlier in possession of the
appellant’s father and thereafter, his mother, and presently with the appellant
as a tenant. It has come in evidence that the appellant purchased the land in
Mohammad Yaseen Dar
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RSA 10 of 2022 Page 17 of 20
the year 1986-87, upon which toffee factory has been established by his
brother-Vijay Kumar. Though the appellant has stated that shops are not
available on rent in Udhampur town and to the same extent, statements have
been made by other witnesses. The evidence led by the appellant in respect
of non-availability of the shop on rent is vague and unsubstantiated, as the
appellant failed to establish that he made any concrete effort to obtain the
shop on rent during the long period of tenancy but failed in his efforts. This
assumes significance in view of the statement made by the respondent,
wherein he has stated that numbers of shops are available on rent in
Udhampur town, more particularly, the shops of Madan Lal, Vinod Kumar
Verma and Avtar Krishan, which are situated in front of his shop and are
currently vacant. The mere fact that the appellant purchased the land in the
year 1986-87 whereupon his brother has established the toffee factory
clearly proves that the appellant is a man of means. Even if the evidence led
by the landlord and the tenant is assumed to be in perfect equilibrium, the
scale of justice would still tilt in favour of the landlord, as he is the owner of
the property and has established the bonafide requirement for the suit shop.
In this context, it would be appropriate to take note of the judgment of the
Hon’ble Apex Court in Murlidhar Aggarwal v. Mahendra Pratap Kakan,
2025 SCC OnLine SC 915, where in it was held as under:
27. The repeated reference to the alleged existence of other businesses of the
appellant does not carry the case of respondents any further. At the outset,
the bona fide need of the appellant is clearly established. No doubt, Rule
16(2)(c) of the Rules of 1972 does mention that greater the existing business
of the landlords own, the less the justification for allowing the application. It
is also true that comparative hardship is to be appreciated under the proviso to
Section 21(1)(a) of the 1972 Act. We have weighed the evidence on record
and found that taking the case of the respondents at its highest, and even
if we believe each and every averment of the respondents at best, the
parties in financial terms could be said to be equally poised. The
respondents who own several businesses have managed to cling on to the
Mohammad Yaseen Dar premises for the last 63 years, after the expiry of the 10-year lease.
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RSA 10 of 2022 Page 18 of 20
28. In Mohd. Ayub v. Mukesh Chand, , this Court, by relying on Ganga
Devi v. District Judge, Nainital, and Bhagwan Dass v. Jiley Kaur (Smt), ,
held that one of the circumstances to be seen while appreciating the
comparative hardship is to examine whether the tenant has brought on
record any material to indicate that at any time during the pendency of
the long drawn-out litigation, he made any attempt to seek an alternative
accommodation and was unable to get it. This factor will be one of the
circumstances to be taken into consideration while determining whether
the claim of the landlord is bona fide. In this case, nothing is on record to
show that the tenant who has been in the premises for a total of 73 years with
63 years of them after the expiry of the lease, has made any attempt to seek
any alternative accommodation and nothing is brought on record to show that
he was unable to get one.
(emphasis added)
29. It needs to be noted that the size of the shop is not so large that it could be
partitioned to accommodate both the grandson of the respondent and the
appellant. This court has carefully perused the judgment passed by the
learned appellate court and finds that the learned appellate court, after
placing reliance upon the various pronouncements of the Hon’ble Supreme
Court regarding bonafide requirement and comparative advantages/
disadvantages, has rightly come to the conclusion that the respondent has not
only been able to demonstrate the bonafide need of suit shop for
accommodating his grandson, but, also that the respondent would be put to
more disadvantageous position in the event his claim is rejected. As such,
this Court does not find that the learned Appellate Court has mis-directed
itself in respect of the ground of need pressed into service by the respondent
for vacation of the suit shop. The substantial question of law No.2 is
answered accordingly.
Conclusion:
30. In light of what has been considered, discussed and analyzed as above, this
Court is of the considered view that the learned Appellate Court has rightly
considered the controversy and arrived at correct decision by setting aside
the judgment of learned Trial Court and decreeing the suit preferred by the
Mohammad Yaseen Dar
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RSA 10 of 2022 Page 19 of 20
respondent. Accordingly, this appeal fails and is dismissed. The appellant is
directed to vacate the suit shop within a period of six months from today.
Registry is directed to prepare the decree sheet accordingly. No order as to
costs.
(RAJNESH OSWAL)
JUDGE
Jammu
11.07.2025
Madan Verma-Secy.
Whether the order is speaking: Yes
Whether the order is reportable: Yes
Mohammad Yaseen Dar
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RSA 10 of 2022 Page 20 of 20