Rajasthan High Court - Jodhpur
Satya Narain vs Baldev Krishan on 11 March, 2011
Equivalent citations: AIR 2011 (NOC) 240 (RAJ.)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
SATYA NARAIN vs. BALDEV KRISHAN
S.B. Civil Regular Second Appeal No.216/2010
Under section 100 of the Civil
Procedure Code against the judgment
and decree dated 08.11.2010 passed
by the District Judge, Churu in
Regular Civil Appeal (Decree)
No.27/2003.
....
DATE OF JUDGMENT :: 11th March, 2011
PRESENT
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI
Mr.P.K.Sharma for the appellant.
Mr.O.P.Mehta for the respondent-caveator.
Reportable- BY THE COURT:
This second appeal is being decided by the consent of both the parties, at the admission stage.
Heard the learned counsel for both the parties. This second appeal has been filed by the defendant appellant tenant, against the decree of 2 eviction passed by the learned appellate court , i.e., the District Judge, Churu.
The suit was filed by the respondent plaintiff, against the appellant defendant, for eviction of property on various grounds, including grounds of bonafide and reasonable necessity, sub-letting, material alteration, and change of user, and the learned trial court decreed the suit only on the basis of bonafide and reasonable necessity, which was affirmed by the first appellate court vide impugned order dated 08.11.2010.
The facts of the case are that, the plaintiff filed the present suit for eviction of the shop and the room situated on the second floor of the shop situated at 'Athuna Bazar', Sardarshahar, with an averment therein that the shop, comprising in three parts in dispute, was let out to the defendant appellant on 01.09.1980, on monthly rent of Rs.500/- and at the time of the filing of the plaint , the monthly rent of the premises was Rs.600/- per month. On 01.09.1985 a room situated on the second floor of the same building was let out to the defendant appellant, for the purpose 3 of staying of the customers and the Commission Agents of the defendants.
The plaintiff sought the decree of eviction against the defendant on the ground that initially the plaintiff was serving in the Indian Army and, thereafter, he had been appointed as Divisional Commandant, Home Guards, and at the time of filing of the plaint, he was to retire after three and a half years and his family consisted of eight members, including five daughters , one son , wife and himself and to meet out the family needs and in order to increase the earning of the family, the wife of the plaintiff wants to do the business of manufacturing 'pappad' 'badi' and other spices and the plaintiff himself, after his retirement from the above post, wants to continue the same business for increasing the earning of the family. The plaintiff pleaded his bonafide necessity for the shop, for the above business and for the room situated at the first floor, for the domicile purpose of his family members. In addition to bonafide necessity, the fact of the comparative non-fulfilment of the requirements of the plaintiff, by way of partial eviction . 4
The other grounds of material alteration, by way of raising a cemented pavement and subletting to the brother of the defendant, and the ground of default, were also pleaded by the plaintiff as grounds for eviction.
By way of written statement, the defendant denied all the averments pleaded in the plaint, as grounds for eviction and further the defendant pleaded that initially the rent of the shop was Rs.500/- per month but subsequently from September 1995, it was increased to Rs.600/- per month. The defendant denied the reasonable and bonafide necessity of the plaintiff, on various grounds and he also denied the other facts, which were averred by the plaintiff in the plaint , pleading as grounds for eviction.
The learned trial court originally framed 9 issues and tenth issue was framed on 24.05.2003. Issue No.1 was as to Whether the plaintiff has a reasonable and bonafide necessity of the suit premises,and issue No.2,3,4 and 5, were regarding the other grounds of eviction,, which were pleaded by the plaintiff and issue No.6,7 and 8 were on the basis of the averments made 5 in the written statement by defendant, and the burden of proving these three issues were placed on the defendant.
During the trial, the plaintiff examined 2 witnesses, PW/1 Baldev Krishan and PW/2 Ratan Lal and after the examination of four witnesses DW/1 Saty Narain, DW/2 Santosh Kumar, DW/3 Padam Chand and DW/4 Kishore Kumar Charan, the plaintiff examined himself and PW/3 Om Prakash Soni, in rebuttal . On 29.07.2003, DW/1 Satya Narain was examined on additional evidence.
The learned trial court decided issue No.1 in the manner that the plaintiff respondent has the reasonable and bonafide necessity of the suit premises, and on the basis of the finding on issue No.1, the suit was decreed for eviction in favour of the respondent plaintiff and against the appellant defendant.
Aggrieved of this, the defendant filed an appeal before the learned lower appellate court. The defendant challenged the finding of the learned trial court, on the issue of reasonable and bonafide 6 necessity. The plaintiff, even without filing of the cross-objections, claimed to support the impugned judgment and decree of the learned trial court and the plaintiff respondent has not challenged the findings on other issues.
The learned lower appellate court, took up issue No.1 and affirmed the finding of the learned trial court and also affirmed the finding of rest of the issues of the learned trial court.
Assailing the impugned judgment and decree, both the parties consented to dispose of this appeal, at the admission stage.
I have considered the pleadings of both the parties, as well as the judgment and decree, passed by the trial court as well as the first appellate court.
The following substantial question of law is framed to decide this second appeal at the admission stage:-
"Whether the learned appellate court has proceeded to affirm the 7 judgment and decree passed by the learned trial court on irrelevant considerations and while ignoring the relevant material available on record, and thereby appreciating the evidence in a perverse manner and contrary to the law ? ".
I have heard learned counsel for both the parties at the admission stage regarding the decision of issue No.1 as decided by the learned trial court and further affirmed by the first appellate court.
Learned counsel for the appellant submits that there is pleading in the plaint, requiring the suit premises for the bonafide and reasonable necessity of the wife of the present respondent and as per para No.5 of the plaint it was pleaded that for the time being plaintiff wants to start the business by his wife for 'pappad' 'badi' and spices industry and his wife also wants to do the same and after retirement of the plaintiff he also wants to continue that business to increase the source of income and further he pleaded that room is required for the residential purpose of the 8 plaintiff, his wife and their children. That is why he wants to get vacated two rooms and store, from Jai Prakash Verma . The Room of first floor is also required by his wife for continuing the business of 'pappad', 'badi' and spices industry.
The counsel for the appellant contended that the suit was instituted in the trial court on 07.10.1996 and it was decided on 04.09.2003. During the pendency of the appeal, the wife of the respondent died in the year 2007 and this fact was brought to the notice of the appellate court and the appellate court vide order dated 08.07.2008 rejected the application of the appellant for amendment of the plaint while observing this fact that the fact of the death of the plaintiff's wife shall be considered, while deciding the appeal finally and at that time the question of reasonable and bonafide necessity of the plaintiff's wife, shall also be considered.
The counsel for the appellant contended that the wife of the plaintiff defendant never appeared in the witness box and the plaintiff himself, while appearing in the trial court deposed about the bonafide and 9 reasonable necessity of his wife of the suit premises and the learned trial court has not considered this fact that the wife of the plaintiff defendant has not appeared in evidence and further this fact has not been considered that the plaintiff deposed that he does not have any experience of the business of 'badi' and 'pappad' industry . He further contended that the first appellate court, has also not considered this fact while deciding issue No.1 that after the death of the wife of the plaintiff respondent , now only the reasonable and bonafide necessity of the plaintiff himself remains for consideration and not even a single line has been referred in both the judgments, regarding the necessity of the wife of the plaintiff, or by the appellate court regarding the necessity of the husband after the death of the wife of the plaintiff respondent. Therefore, in the absence of such an appreciation of evidence it comes within the purview of perverse appreciation of facts and the learned trial court and the first appellate court proceeded to decide issue No.1 on irrelevant consideration and in ignorance of the relevant material available on record and thus, this ignorance and irrelevant consideration can be set aside at the stage of second appeal because it is a legal question, which 10 can be decided while deciding the first appeal and it can be reversed by this court.
The learned counsel for the appellant relied on the following judgment of the apex court in support of his arguments:
Jai Prakash Gupta vs. Riyaz Ahmad [(2009) 10 SCC 197].
The learned counsel for the respondent defended the judgment of trial court and the first appellate court, and contended that the decree passed by the trial court and affirmed by the first appellate court, should be confirmed by rejecting the second appeal, on the ground of concurrent finding of both the courts.
The learned counsel for the respondent relied on the following judgments in support of his arguments:-
Swaroop Devi (Smt.) & Anr. v. Murli Bhagwan Satya Narainji [2008(1) DNJ (Raj.)549] Hansraj v. Rajkumari [2007 (3) DNJ 1554] 11 Rekha Gangadia (Smt.) & Ors. v. Jayanti Lal [2008 (3) DNJ (Raj.) 1481] Sushila Devi (Smt.) & Ors. v. Shri Mahavir Kumar Sanghi [2007 (3) DNJ (Raj.1334] Shantilal Thakordas & Ors. v. Chimanlal Maganlal telwala [ AIR 1976 SC 2358] Gaya Prasad v. Pradeep Shrivastava [2001 AIR SCW , 598].
Shakuntala Bai & Ors. v. Narayan Das & Ors. [2004 AIR SCW, 3291] Kamleshwar Prasad v. Pradumanju Agarwal (dead) by LRS. [(1997) 4 SCC 413] G.C.Kapoor v. Nand Kumar Bhasin & Ors. [(2002) 1 SCC 610] Madan Lal v. Nanasaheb [2008 (2) RCJ, (SC) 224] 12 Pratap Rai Tanwani & Anr. v. Uttam Chand & Anr. [2004 AIR SCW 6858] Naresh Chand v. Smt.Premlata Bakshi [2009 (1) DNJ (Raj.) 423] R.K.Nair v. Saramma George & Ors. [2006 (1) RCJ 201] Dattatray Laxman Kamble v. Abdul Rasul Moulali Kotkune & Anr. [1999 (2) CCC 115 (SC)] Raghunath G.Panhale (dead) by LRS. v. M/s Chhaganlal Sundarji & Co. [1999 AIR SCW 3944] Mattulal v. Radhe Lal [AIR 1974 SC 1596] Sarla Ahuja v. United India Insurance Comp.Ltd. [1999(1) All India Rent Control Journal 158] Har Narain Daga v. Heeralal & Ors. [AIR 2001 SC 341] M.L.Prabhakar v. Rajiv Singal [2001 (1) RCJ 262 (SC)] 13 Valsan v. Furtal [2005(1) RCJ 342] Gopal Das v. Kasturi Devi Begani [2002 (2) RCJ 49] Amar Singh v. Chander Kala [1999 (2) All India Rent Control Journal 311] Legal Representatives of Subhash Sidhwani v. Smt. Madhulika Agarwal [RLW 2002 (1) Raj.271 ] Girdhari Lal v. Smt. Kanta & Ors. [1999 DNJ (Raj. 488] M/s Ramavatar Kailash Chand & Company & Ors. v. Smt.Suraj Bai & Anr. [1986 (2) WLN 294] Shamshad Ahmad & Ors. v. Tilak Raj Bajaj (D) by Lrs. & Ors. [2008 AIR SCW 6201] Parbati Poddar v. Brig. Jogender Singh (Retd.) [2005 (1) RCJ 8 ] and Ragavendra Kumar v. Firm Prem Machinary & Co. [AIR 2000 SC 534] 14 I have perused the record and pondered over the rival contentions made by both the parties and further perused the judgments cited by both the parties.
In Jai Prakash Gupta's case (supra) the Hon'ble apex court, while dealing with the subsequent development of facts and law having a material bearing on the entitlement of parties to relief, held that even at any stage of the proceeding court cannot be precluded from taking a conscious decision , relief can be appropriately moulded, based on subsequent events.
In Swaroop Devi (Smt.) 's case (supra) it has ; been held that the learned Judge refused to interfere in the finding of the facts while deciding the second appeal and it was a case of determination of the question of relationship of the landlord and tenant, and were a concurrent finding of facts by both the courts below.
The facts of this case are different to the case in hand.
15
In Hansraj 's case (supra), in case of reasonable and bonafide necessity the trial court as well as the first appellate court came to the same finding on the issue of reasonable and bonafide necessity. Further, it was held in para No.30 that the question of reasonable and bonafide necessity is essentially a question of fact, whereas in the present case the legal question is whether the appreciation of the evidence made by the trial court and affirmed by the first appellate court is perverse and is based on irrelevant considerations ?. Therefore, the facts of this citation is not applicable to the present case.
In Rekha Gangadia (Smt.)'s case (supra) it was a suit for eviction on the ground of personal and bonafide necessity and the denial of title of plaintiff by the defendant and it has been held that denial of title was not a bonafide challenge and the court below recorded concurrent finding on issue of personal and bonafide necessity and while considering the second appeal, it was rejected.
Here also this was not the case of the appellant 16 that the finding arrived upon by the trial court as well as the first appellate court was on the basis of perverse appreciation of evidence.
In Sushila Devi (Smt.) 's case (supra) , this Court considered the scope of the second appeal in a case where the death of the plaintiff respondent during the pendency of the appeal and held that such death does not completely eclipse the bonafide necessity of landlord, which existed on the date of institution of suit and further held that the question of bonafide and reasonable necessity is a question of fact.
Shantilal Thakordas' case (supra) the question was that when there was the pleading regarding the reasonable and bonafide requirement of suit premises for the firm, and where the landlord who was a partner in the firm died, and a new firm was constituted the question of reasonable and bonafide necessity cannot be said to be ceased.
In Gaya Prasad's case (supra) the Hon'ble apex court held that the crucial date for deciding bona- fides of the need is date of application subsequent 17 developments occurred, pendente lite can be taken into account, only when need of landlord is completely eclipsed by such subsequent events.
In Shakuntala Bai's case (supra), it has been held that the bonfide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant, will make no difference as his heirs are fully entitled to defend the suit.
There is no dispute on legal principle that landlord is best Judge to decide his suitability of the premises, which may satisfy his need. Same principle is pronounced in some of the judgment cited by learned counsel for the respondent. However, the question of his bonafide necessity, still requires judicial scrutiny by the court and where the trial court and first appellate court has failed to apply settled proposition of law, in judging such bonafide necessity, then the finding arrived at by these courts , is perverse one. It can be interfered with at the stage of second appeal also. The general principle that, 18 concurrent finding of fact recorded by the trial court and first appellate court, cannot be unsettled, does not apply in such a case where the finding recorded by them is perverse. Thus, the judgments cited by the learned counsel for the respondent to the effect that concurring finding should not be disturbed, are not applicable to the present case.
Further , decided cases are of no use in appreciating the evidence. Each case depends on its own facts. A close similarity between one case and another is not enough to warrant like treatment, because a significant detail may alter the entire picture of the case. The broad resemblance between two cases, is not at all decisive.
Thus, the main ground on which the respondent defended the judgment of the trial court as well as the first appellate court is that the finding of the trial court and the District Judge, on the question of bonafide requirement of the shop and the room by the respondent was only a finding of fact and, therefore, this Court is not competent to interfere with it. 19
The learned counsel for the respondent cited all the judgments in which it has been consistently held that in case of the finding of fact, this Court cannot interfere with those findings, while exercising the powers in second appeal.
On the other hand, the learned counsel for the appellant challenged the order of the learned trial court, as well as the first appellate court, merely on the ground that the finding of fact arrived upon by the trial court as well as the first appellate court by misreading of facts were arrived upon by an error of law or it was based on no evidence at all, or was arbitrary unreasonable or perverse, can be set aside by this Court while dealing with the second appeal.
I have considered the rival contentions of both the parties on this point.
It is settled law that the High Court in second appeal, cannot re-appreciate the evidence and interfere with the findings of fact reached by the trial court and affirmed by the first appellate court. The lower appellate court is final, so far as the finding of 20 fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate court is contrary to law. It is only an error of law, which can be corrected by the High Court in exercise of its jurisdiction, in second appeal. If the findings recorded by the lower appellate court is one on law, or on mixed question of law and fact, the High Court can certainly examine its correctness but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse.
The learned counsel for the appellant contended that the High Court is entitled to examine its correctness and if it was found to be wrong , interfere with it, even while exercising jurisdiction in second appeal.
The question which , therefore, arises for consideration is, whether the finding of the trial court , affirmed by the first appellate court on 21 bonafide and reasonable necessity of the plaintiff respondent, of the shop and the room was a pure finding of fact or mixed finding of law and fact.
The legislature has imposed a restriction upon the jurisdiction of the court, to pass a decree against the tenant in a suit for eviction by the landlord and the onus of proving the conditions on proof of which alone the protection may not be claimed, lies upon the landlord and the burden of proving that he genuinely requires non-residential accommodation, within the meaning of section 13 of the Rent Control Act, therefore, lies upon the landlord.
Whether in a given case, that burden is discharged by the evidence on record, is a question of fact. It must, however, be observed that mere assertion by the land lord that he requires for his use , the premises in the occupation of his tenant raises no presumption that he genuinely requires the premises for his commercial use.
The learned District Judge and the trial court, both held that the respondent succeeded to establish that 22 he genuinely requires the premises in suit, primarily on two grounds-
(i) that he wants to get start his wife's business of 'pappad', 'Badi' and 'Masala' industry, and
(ii) that he himself, after retirement, would like to continue that business to increase his income.
As per the judgment passed by the Bench of four Judges of the Hon'ble Supreme Court in T.B.Sarrote vs. Nemi Chand [1966 MPLJ 26 (SC), the finding of the first appellate court that the respondent has reasonable and bonafide requirement of the suit premises, for the commercial purpose, to start the business of 'badi' and 'pappad' is a finding of fact.
The question would still remain whether there were proper grounds on which this finding of fact could be interfered by this Court. It is now well settled by several decisions of apex court that mere assertion on the part of the land lord that he requires the non- residential accommodation in the occupation of tenant for the purpose of starting or continuing his own 23 business is not decisive. It is for the court to determine the truth of the assertion and also whether it is bonafide. The test which has to be applied is a an objective test and not a subjective one and merely because a landlord asserts that he wants the non- residential accommodation for the purpose of starting or continuing his own business that would not be enough to establish that he requires it for that purpose and that his requirement is bonafide. The word require as provided in section 13 (1) (h) of the Rajasthan Premises ( Control of Rent and Eviction) Act 1950 signify that mere desire on the part of the landlord is not enough and there should be element of the need and the landlord should show the burden upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business.
I find support in my this view, from the judgment of the Hon'ble Supreme Court in Hafazat Hussain v. Abdul Majeed [(2001) 7 SCC 189], in which it has been held that rule of non-interference in concurrent findings of lower courts, held, is not an absolute rule of universal application. 24
The learned counsel for the appellant contended that the finding of the trial court and that of the first appellate court that the respondent genuinely require the said premises for the purpose of starting new business of 'pappad' and 'badi' was vitiated firstly, because both the courts erroneously assumed without any evidence which shows that he made preparations for starting this new business such as making arrangements for capital etc. and merely because both the courts relied wrongly and unjustifiably on the fact that the respondent had asked for the possession of the whole of the premises no such finding can be arrived at.
I have considered the rival contentions and the evidence available on record.
It is admitted fact that the wife of the plaintiff respondent had not appeared in the evidence before the trial court for whose business the suit premises was required for starting the commercial business of 'pappad' and 'badi' and further the plaintiff himself admitted in cross examination that he is not having 25 any experience of business or industry of 'pappad' and 'badi' and he never conducted such business and he further admitted that at the relevant time he was working as the Divisional Commandant in Home Guards and further after the death of the wife of the respondent appellate court did not refer anything about the death of the wife of the respondent and merely it decided issue No.1 on the necessity of the plaintiff himself without referring any thing about the death of the wife of the plaintiff respondent.
Moreover, when the respondent had no experience in the business of dealing in 'pappad' and 'badi' industry and it was entirely a new business so far as he was concerned and his wife died during the pendency of the appeal and this fact was not considered by the first appellate court and it would indeed be strange and unusual tanning the credulity of the court that the respondent who was a public servant earlier working in the Army and later on serving as a Divisional Commandant of Home Guard and who was of the age of 58 or 60 years want to start a new business to prepare 'pappad' and 'badi' business in which he had no experience at all. These 26 circumstances borne out by the evidence on record had not been considered by the learned District Judge, Churu while deciding the first appeal.
In these circumstances the finding of fact arrived upon by the first appellate court can be said to be arbitrary , unreasonable and perverse so as to the merit of the case.
In view of the aforementioned discussions, the findings on issue No.1 in favour of plaintiff respondent by the trial court, as well as affirmed by the first appellate court, cannot be sustained and the suit was decreed only on the basis of the finding on issue No.1. Therefore, the second appeal filed by the appellant Satya Narain succeeds and the same is allowed at admission stage and the judgment and decree of the trial court, passed in Civil Suit No.35/1996, and affirmed in civil first appeal No.27/2003, are set aside and the suit of the plaintiff respondent is dismissed, with no order as to costs.
(KAILASH CHANDRA JOSHI),J.
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