Rajasthan High Court - Jaipur
Smt Shanti Devi Parashar (Pand vs Smt Koshalya Devi Goyal on 18 July, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL FIRST APPEAL NO.223/1999 Smt. Shanti Devi Parasar vs. Smt. Koshalya Devi Goyal DATE OF ORDER : : 18th July, 2013 HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Shri J.P. Goyal, Sr. Advocate with Shri Aditya Sharma) Shri Pawan Choudhary) Shri Abhi Goyal ) for the appellant Shri Man Singh Gupta with Shri C.P. Sharma ) for the respondent.
REPORTABLE This is defendant's first appeal against the judgement and decree dated 14.5.1999 passed by the District Judge, Jaipur whereby the suit filed by the plaintiff-respondent for eviction and recovery of rent has been decreed against him.
The plaintiff-respondent filed the suit before the court below for eviction of the defendant-appellant, restoration of possession and recovery of rent inter alia with the pleadings that the property in question was purchased by her from its earlier owner Smt. Chanda Devi by registered sale deed. The defendant-appellant was tenant in the part of the property shown by red colour in the map annexed to the plaint. A civil suit was earlier pending between earlier owner of the property Smt. Chanda Devi and the defendant for eviction on the ground of her personal necessity in which the plaintiff-respondent was also impleaded as party on her own application. It was pleaded that the property was purchased by the plaintiff for personal bona fide need and that she had no alternative accommodation at Chomu. The defendant-appellant did not permit the plaintiff-respondent to enter the premises. Proceedings against her were initiated under Section 107 and Section 116 of Cr.P.C. at the instance of plaintiff.
The defendant-appellant submitted written statement and alleged collusion between the plaintiff-respondent and the earlier owner of the premises. Already earlier suit was pending before the court of Munsif. This suit was filed before the higher court by enhancing the valuation and thereby changing the pecuniary jurisdiction. Since the plaintiff was already impleaded as party in the civil suit filed at the instance of earlier owner at Chomu, the proceedings in the present suit are liable to be stayed. The plaintiff had alternative accommodation to reside. She had her own residential house in the name of her husband situated near Government Hospital, Chomu. He along with her husband and sons was residing there. The defendant-appellant had no other alternate accommodation and that she would suffer greater hardship than the plaintiff if eviction is ordered.
The trial court on the basis of pleadings of the parties framed the following issues.
(i)Whether the plaintiff has purchased the property mentioned in para 4 of the plaint for the purpose of her own residence and that of her husband and the sons?
(ii)Whether the plaintiff requires the suit premises for bona fide and reasonable necessity of her family?
(iii)Whether the defendant had been having grudge against the plaintiff ever since the purchase of the suit premises and started threatening her?
(iv)Whether the defendant has created nuisance as alleged in para 8 of the plaint?
(v)Whether the plaintiff will suffer greater hardship than the defendant if the suit premises is not vacated?
(vi)Whether the bona fide and reasonable necessity of the family of the plaintiff would not be satisfied by partial eviction of the suit premises?
(vii)Whether the execution of the sale deed in favour of the plaintiff was a sham transaction being conspiracy?
(viii)Whether suit has been properly valued?
(ix)Whether the suit is not within the jurisdiction of the Court as averred in para 14 of the written statement?
(x)Whether the defendant was entitled to receive damages?
(xi)Relief?
The issue no.8 relating to valuation of the suit and issue no.9 relating to the jurisdiction of the Court were decided in favour of plaintiff by order of the trial court dated 18.4.1996.
The plaintiff produced Vasudev Prasad Goyal (PW-1), Vinod Goyal (PW-2), Damodar Prasad Sharma(PW-3) in support of his case and exhibited 12 documents namely; Power of Attorney (Ex.1), map prepared at the instance of plaintiff (Ex.2), water connection transferred in the name of plaintiff (Ex.3), order of temporary injunction (Ex.4), report of Commissioner (Ex.5), order dated 23.07.1990 (Ex.6), ration Card (Ex.7), notice published in newspaper (Ex.8), FIR (Ex.9), charges (Ex.10) and report (Ex.11). The defendant produced herself as DW-1, Parmeshwar Lal (DW-2), Hanuman Prasad (DW-3), Laxminarain (DW-4), Radhey Shyam (DW-5), Hanuman (DW-6) and Narendra Kumar (DW-7) and exhibited three documents namely; copy of plaint of another eviction suit (Ex.A-1), written statement (Ex.A-2) and statement of Shanti Devi (Ex.A-3).
The learned trial court decided all the aforementioned issues in favour of plaintiff and against the defendant and therefore decreed the suit. Hence this appeal.
Shri J.P. Goyal, learned senior counsel appearing for the appellant has argued that the plaintiff herself has not appeared as a witness, therefore, her case cannot be said to be proved. Vasudev Prasad Goyal (PW-1) has appeared in the capacity of her power of attorney. Even though he could be a power of attorney, but he could not replace the plaintiff. He could at the most appear on his behalf, but not in lieu of her. It is therefore prayed that his evidence should not be taken as the evidence of the plaintiff herself, as held by this Court in Ram Prasad vs. Harinarain-AIR 1998 Rajasthan 135. It is argued that the learned trial court decided issue nos.2, 3, 6 and 7 simultaneously and all against defendant. In doing so, the learned trial court has not properly appreciated the evidence. There was no sufficient material to conclude that the plaintiff required the suit premises for bona fide requirement of her family. As per her own showing, she purchased the disputed premises for reconstruction of the building for the requirement of family. Although she alleged that she required the properties because presently her family was residing in a joint house property since 1968 and on account of paucity of space, they require independent accommodation. Fact that marriage of his one son was solemnised during the pendency of the suit and other is going to be held soon, cannot be a reasonable bonafide necessity. The learned trial Judge has failed to appreciate that evidence of the defendant and plea raised by her to the effect that if the suit premises was already in possession of the tenant for last 32 years, the necessity of the plaintiff could not be said to be bonafide. If the plaintiff has purchased a house with a sitting tenant, she would run the risk having done so at her own peril. If at all she actually wanted to construct a new residential building, she should have purchased vacant land or vacant house property rather than buying property with a sitting tenant. This clearly proves her design to somehow through out the defendant-tenant in collusion with the plaintiff and, therefore, the necessity cannot be said to be bona fide, but was rather tainted with malice. Moreover, when earlier owner had already filed a suit for eviction against the defendant in the year 1991 and when he did not succeed in the suit for as many as four years, he colluded with the plaintiff with the designed planning to transfer the land in possession of the defendant. Therefore, the necessity of the plaintiff cannot be said to be either bonafide or reasonable. The suit must be held to have been filed with an oblique motive in collusion with the erstwhile owner. Reliance in this connection is placed on the judgement of the Supreme Court in Indrasen Jain vs. Rameshwar Das-(2005) 9 SCC 225.
Shri J.P. Goyal, learned senior counsel for the appellant further argued that the learned trial court failed to properly appreciate the evidence of the defendant appearing as DW-1, who has deposed that her husband has no other accommodation to live in Chomu town except the disputed house. She was a poor lady and the rooms that were let out to her in tenanted premises were also temporary structures covered by tin shed and tarpaulin, whereas the plaintiff has been already residing in a pucca constructed house with no threat of being evicted by his landlord Srinarain. She was not even paying any rent to him. The defendant would therefore suffer a greater hardship than what would be suffered by the plaintiff in case she is required to vacate the suit premises. The defendant has no other accommodation for her own residence and for the residence of her family members. The findings recorded by the trial court thus suffers from perversity.
Shri J.P. Goyal, learned senior counsel for the appellant further argued that the learned District Judge has failed to appreciate the mandatory provisions of second proviso to Section 14 of the Rent Control Act with regard to partial eviction inasmuch as the disputed premises has been described having area of about 55'x41' as evident from the map annexed with the plaint. The defendant-appellant was in possession of only two rooms and rest of the property was lying vacant. The need of the plaintiff could be satisfied by raising construction of two rooms and one kitchen, as pleaded in the plaint, in the open area. No valid reason has been assigned by the learned trial court to negative the plea of the defendant with regard to partial eviction.
It was further argued regarding finding of nuisance on issue no.4 that the open land which was in use and occupation of the defendant since inception of tenancy that this use was incidental to the use of house let out to the defendant, for going to and coming from, the same. This was necessary for making proper use of the rooms/premises. It cannot be said that the defendant encroached upon the open land and that this amounted to legal encroachment. The plaintiff failed to prove as to what happened to proceedings under Section 107/116 Cr.P.C. initiated against the defendant. In absence of proof thereabout, the findings on nuisance could not have been recorded by the trial court on mere ipse dixit of the plaintiff.
Per contra, Shri S.C. Gupta, learned counsel for the plaintiff-respondent has supported the impugned judgement and submitted that the learned trial court was perfectly justified in directing eviction of the defendant. The suit premises was let out to the defendant almost 35 years before the filing of the suit by the plaintiff-respondent. It was argued that the plaintiff had no house of their own to reside and that they require the disputed premises for their bona fide and reasonable necessity. The plaintiff was presently residing in the house of Srinarain as tenant. Her entire family is residing in two small rooms and one small kitchen having tin shed. The plaintiff did not have any house of their own in the Chomu town. The plaintiff was not able to get her sons married because of lack of accommodation. This fact has been proved by Vasudev Prasad Goyal (PW-1) and Vinod Goyal (PW-2), the son of the plaintiff. Damodar Prasad (PW-3) has also proved that the plaintiff and her family were residing in rented house of Srinarain. It has been proved by the statement of this witness that husband of the plaintiff was separated from the family in the year 1968 and a notice to this effect was also published in the newspaper (Ex.9). The family of plaintiff consists of six members which included two sons and two daughters. Learned counsel argued that this Court in Ranjit Singh vs. Hari Mittar Sharma & Ors.-1996 (1) RLR 576 held that the ground of bonafide reasonable necessity of the plaintiff cannot be rejected merely because the plaintiff has purchased the premises from a sitting tenant. It was argued that the plaintiff would suffer more hardship than the defendant if the suit premises is not vacated because she herself was a tenant in another accommodation and that she was in need of the suit premises.
As regards the partial eviction, learned counsel submitted that PW-1 Vasudev Prasad has categorically proved that the partial eviction would not satisfy their requirement because now two sons of the plaintiff are going to get married and they would need a bigger house and moreover one of the sons has already been married during the pendency of the suit proceedings.
Learned counsel argued that even if the plaintiff herself has not appeared, her husband and sons appeared to prove their bonafide necessity which is sufficient compliance of requirement of law. Reliance in this connection is placed on the judgement in the case of Ramkoo Bai vs. Hazari Lal-AIR 1999 SC 3089.
Learned counsel submitted that the ground of nuisance has been proved because even though the part of suit premises has been let out to the defendant, but she has not been allowing the plaintiff to enter the remaining part i.e. the open space marked as 'X' in Ex.2. This fact has been proved by PW-2 Vinod Goyal. DW-1, the plaintiff herself in Court statement stated that she did not permit the plaintiff to enter the house because stay was operating in favour of the defendant and she would not permit in future also. As per Section 13 (1)(d) of the Rent Control Act, 1950, a tenant cannot obstruct the landlord from using the premises, therefore, the action of the defendant amounts to nuisance. Shri S.C. Gupta, learned counsel for the respondent relying on the judgment in Mohd. Ayub & Anr. vs. Mukesh Chand-(2012) 2 SCC 155, argued that Supreme Court in that case on the aspect of bona fide necessity and comparative hardship held that once the need of the landlord is found to be bonafide, the landlord would suffer greater hardship by not occupying his own premises than the hardship of the tenant by having to move out to another place. The Supreme Court in that case held that occupation of the premises for a long time cannot be the sole determinative factor. Reliance is also placed on the judgement of Patna High Court in Rajendra Poddar & Anr. vs. Smt. Shankuntala Devi & Anr.-2012 (1) RLR 242 and it is argued that non-examination of a plaintiff in a case would not be fatal in every situation and this would depend on facts and circumstances of each case. It is therefore prayed that the appeal be dismissed.
I have given my anxious consideration to the rival submissions and perused the material on record.
The suit in the present case has primarily been decreed on satisfaction of the trial court that the let out premises is required by the plaintiff and her family for their bona fide and reasonable necessity. When such is the case, non-appearance of the plaintiff Kaushalya herself as a witness would not be fatal because her husband Vasudev Prasad Goyal as PW-1 and her son Vinod as PW-2 have appeared in witness box and both of them have proved all the grounds of eviction, not only the bona fide reasonable necessity, but also that of nuisance created by the defendant.
There is no invariable rule that in every case where the plaintiff has not appeared in witness box, suit has to be dismissed or where the defendant has failed to appear as witness, the suit has to be decreed. The plaintiff has not appeared in witness box and in his place, his power of attorney deposed. It can be said that if the plaintiff is not examined and her power of attorney appears, the suit has to be dismissed and if defendant is not examined as witness, but in his place power of attorney is examined as witness, suit has to be decreed. It would depend upon the qualify and kind of evidence that the power of attorney holder seeks to give on half of plaintiff or the defendant, as the case may be.
In Ramkoo Bai, supra the Supreme Court was considering a case where the bona fide personal necessity of the plaintiff, who had not examined herself, was held to have been proved by examination of his son, who had appeared as a witness to prove her case.
In Rattan Dev vs. Pasam Devi-(2002) 7 SCC 441, the Supreme Court held that the Court would not be justified in dismissing the suit merely on the ground that plaintiff had not examined himself. Non-examination of the plaintiff had to be kept in mind while examining the other eye witnesses. It was held that the first appellate court also erred in law in dismissing the suit merely by drawing adverse inference against the plaintiff by his non examination. The matter was therefore remanded back to the first appellate court to decide it afresh.
The Supreme Court in Man Kaur (Dead) by L.Rs. vs. Hartar Singh Sangha-(2010) 10 SCC 512 was dealing with a case where plaintiff purchased the property as non-resident indian. Agreement to sale was entered into between the parties through power of attorney holders. The agreement on behalf of the plaintiff was signed by different attorney-holder and suit was filed by another attorney-holder. Earlier power of attorney-holder, who executed the agreement on behalf of the purchaser was not examined, and the subsequent one, who was examined stated unawareness about the transaction. The plaintiff could not arrange for balance amount on the day fixed. The defendant vendor contended that the plaintiff was not ready and willing to perform the contract. Agreement provided for payment of double amount of earnest money in case of breach by vendor. It did not provide for specific performance of contract. In those facts, their Lordships while examining the legal position as to who should give evidence in regard to matters involving personal knowledge, summarised the following principles of law after considering the case of Vidhyadhar vs. Manikrao-(1999) 3 SCC 573, Janki Vashdeo Bhojwani vs. Indusind Bank Ltd.-(2005) 2 SCC 217 and Shambhu Dutt Shastri vs. State of Rajasthan-(1986) 2 WLN 713 (Raj.):
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seeking specific performance who has to show his `readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
The power of attorney holder can also be therefore a competent witness to depose on behalf of the plaintiff in respect of matters of which he has personal knowledge or all matters which he has done or his actions or for any act or he is handling transactions pursuant to power of attorney by principal or matters which are known to him personally and not to the principal or where the principal at no point of time had personally held or participated in the transaction and has no personal knowledge of the transaction and the entire transaction has been handled by the attorney holder or where eviction is sought on behalf of the principal-landlord on the ground of bona fide and reasonable necessity or on behalf of buyer/purchaser seeking specific performance to show readiness and willingness to purchase.
The plaintiff is required to prove his case by his own evidence as also by evidence of other witnesses and the documentary proof. If he withhold the best evidence, the courts is entitled to draw an adverse inference against him that had he had produced such evidence, it would have gone against him. The failure of the plaintiff or the defendant to appear in witness box in certain situations entitle the Court to draw adverse inference against him. The principal behind drawing of adverse inference is thus based upon the best evidence theory, which is founded on the principal that the Court can draw adverse inference against the party, who withholds the best evidence in his possession. This is however an abstract proposition of law depending on facts and circumstances of each case. The fact that the Court may draw adverse inference does not make that Court must in all circumstances should draw adverse inference against such party. The Court may draw adverse inference only if it is satisfied that such party is willfully withholding the best evidence from coming to the Court or has not appeared to prove such facts, which are within his personal experience and knowledge. If however the necessary facts have otherwise been proved by production of cogent evidence, the Court is equally entitled not to draw adverse inference because in that case the Court has no reason to ignore the evidence if it sufficiently proves the case of the plaintiff or the defendant, as the case may be. It cannot depend on the degree of evidence that has been produced and burden of such litigant stands discharged. Reference in this connection may be usefully made to the judgement of Supreme Court in Panduram Jivaji vs. Ramchandra Gangadhar Ashtekar-AIR 1981 SC 2235. The appellants in that case before the Supreme Court were asserting their right to sell the property under attachment but had failed to appear before the court below in support of their assertion and on that basis, it was contended that necessary presumption against them should have been raised by the courts below on account of their failure to appear before the Court. In those facts, the Supreme Court rejected the contention for raising adverse inference against the appellants holding that the question of drawing an adverse inference against a party for his failure to appear in court would arise only when there is no evidence on the record.
Next comes the question whether the learned trial court was not justified in accepting the bonafide reasonable necessity of the plaintiff proved even though she purchased the suit premises from a sitting tenant.
The purchase of the disputed premises by the plaintiff cannot be said to be lacking in bonafides only because the defendant had occupied part of it for residential purposes. The evidence has substantially proved that the plaintiff and his family are residing in rented accommodation. They needed a house of their own because when the suit was filed, two sons of the plaintiff were of marriageable age and their family needed larger accommodation. The accommodation which is available with the defendant on rent consists of two small rooms and one tin shed, used as kitchen. Plaintiff has come up with the plea that he would have his own house constructed on the land of this premises.
In the cited case of the Supreme Court in Mohd. Ayub, supra, when the appellant purchased the house in question, the respondent was occupying two shops facing the road and two rooms situated at the rear of the said shops as a tenant of the previous landlord. Those rooms were situated on the ground floor. The respondent continued to occupy the said rooms as tenant at the same rent. According to the appellant, the first appellant was carrying business in three small stalls situated in a shop of the Cantonment Council, the rent of which keeps increasing. Three major sons of the appellants were employed. Two sons wanted to start general merchant business in one shop and the third son wanted to start wholesale egg business in the other shop. The appellants' family consisted of 13 members. Their one son was married and has three children and the two other sons were of marriageable age. The married son wanted to live in the room behind the shop. The present accommodation available with the appellants was quite scarce wherein they were living with difficulty. The trial court directed partial eviction. Aggrieved therewith the appellant approached the Supreme Court. The Supreme Court held that the need of the landlord was bona fide and further held that findings of the court below on the aspect of comparative hardship was perverse and therefore the order to the extent of partial eviction is set aside. It was held that whenever the tenant is asked to move out of the premises some hardship would be inherent. The tenant was in occupation of the premises for a long time, which hardship can be mitigated by granting him longer period to move out of the premises. It should be noted that property in that case was purchased with sitting tenant, yet the Supreme Court upheld eviction of such tenant on the ground of bonafide and reasonable necessity of the new landlord.
This Court in Rajendra Kumar & Ors. vs. Parasram-2011 (3) WLC Raj.) 165 while repelling the same argument held that there is no provision of law laying down that if a person purchases any property which is under tenancy with a third party it would be presumed that he does not need that property for his personal use. Similar view has been expressed by this Court in Dinesh Kumar & Ors. vs. Nand Lal Mehra & Ors.-2012 (3) WLC (Raj.) 659 holding that even if a landlord is carrying on his business in a rented shop with sitting tenant, he cannot be compelled to do or continue to do his business in the rented shop only to accommodate his tenant. If that is done, it would mean that even if his requirement / need is otherwise found bona fide or reasonable, he would have no option except to sit idle or take some premises on rent or to purchase another vacant shop. That view was expressed by this Court in the matter where the tenanted premises were commercial in nature.
In the present matter, as the facts of this case demonstrates, the landlady herself was residing in rented accommodation for last several years, with her family, where she was facing acute difficulty on account of scarcity of accommodation. Tenant has not proved on evidence that landlady had any accommodation of her own. In facts like these, despite her purchasing the disputed premises, in part of which the defendant-appellant was tenant, her requirement to build a house of her own so as to accommodate her entire family and also for the need of her two sons, who were of marriageable age and one of whom got married during pendency of the suit and another one must have been married now during pendency of the appeal, cannot be said to be lacking in bona fides or otherwise unreasonable.
The Supreme Court in Ganga Devi vs. District Judge, Nainital & Ors.-(2008) 7 SCC 770 has held that comparative hardship indisputably is a relevant factor for determining the question as to whether requirement of the landlord is bona fide or not and it is essentially a question of fact. The Court would not determine the question only on the basis of sympathy or sentiment. Relying on the earlier judgement in Bhagwan Das vs. Jiley Kumar-(1991) Supp. (2) SCC 300, it was observed that outweighing circumstances in favour of landlord was that two of her sons after completing their education were unemployed and wanted to carry on business for self employment. There was an additional circumstances that the tenant had not brought on record any material to indicate that whether at any time during the pendency of this long drawn out litigation, he had made any attempt to seek an alternative accommodation and was unable to get it.
The Supreme Court in Rishi Kumar Govil vs. Maqsoodan-(2007) 4 SCC 465, taking note of the fact that the landlady had no other shop where she can establish her son, who is married and unemployed and there was nothing on record to indicate that the business of the father was huge or flourishing, held that the length of the period of tenancy is only one of the factors to be taken into account in context with other facts and circumstances of the case and cannot be a sole criterion or deciding factor to order or not the eviction.
In the present case, the defendant-respondent is in occupation for last almost five decades and the plaintiff has proved his bona fide necessity. The defendant-appellant is not able to prove his case for partial eviction. The impugned judgement cannot be said to suffer from any infirmity or perversity.
The appeal being devoid of any merits, fails and is hereby dismissed.
(Mohammad Rafiq),J.
RS/ All corrections made in the judgement/order have been incorporated in the judgement/order being emailed. (Ravi Sharma,P.A.