1

IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION  

CIVIL APPEAL NO. 5310    OF 2011

(Arising out of SLP(C) No.13686/2011)

DHAN RAJ                               Appellant(s)

                    :VERSUS:

    LEGAL REPRESENTATIVES OF NEMI CHAND    Respondent(s)

O R D E R

Leave granted.

1. Brief facts which are necessary to dispose of this  

appeal are recapitulated as under:-

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.