Rajasthan High Court - Jaipur
Kirorilal vs Smt. Kishori Devi And Ors. on 6 August, 2004
Equivalent citations: RLW2005(1)RAJ123, 2004(4)WLC464
JUDGMENT A.C. Goyal, J.
1. This second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 21.9.1993 whereby learned Additional District Judge, Karauli set- aside the judgment and decree of eviction dated 2.6.1988 passed by learned Civil Judge, Karauli.
2. The plaintiff filed a suit for arrears of rent and eviction on 11.5.1977 against seven defendants who are legal heirs of the original tenant Sh. Chiranji Lal with the averments that the suit shop was let out to Sh. Chiranji Lal on 1.1.1965 at monthly rent of Rs. 5/- by the original landlord Sh. Ramhet. The suit shop was purchased by the plaintiff vide registered sale deed dated 22.11. 1975. Eviction was sought on the grounds of second default in payment of rent and reasonable and bonafide requirement of the plaintiff.
3. Vide written statements the defendants having admitted the tenancy denied both the grounds of eviction.
4. On the basis of the pleadings, the Trial Court framed issues. Evidence was recorded. Thereafter, vide judgment dated 2.6.1988 the Trial Court held that the defendants have committed second default in payment of rent and the requirement of the plaintiff has been proved to be reasonable and bonafide and the issue of comparative hardship was also decided in his favour and thus decreed the suit for eviction.
5. First appeal preferred by the defendants was allowed vide impugned judgment dated 21.9.1993. In first appeal, it was held that second default is not found proved but the findings of the Trial Court on the issue of requirement of the plaintiff were affirmed but on account of subsequent events which were placed on record by the defendants and the evidence of the parties having been recorded on subsequent events, it was held that since the plaintiff's father Sh. Damodar Lal died during the pendency of this appeal in the year 1989 and the shop in possession of the plaintiff's father is now in occupation of the plaintiff himself wherein he is carrying on his business, the plaintiff's requirement stands satisfied.
6. On 23.11.1994 following substantial question of law was framed by this Court:-
"Whether the learned lower appellate Court has erred in law in setting aside the finding of the Trial Court that the need of the plaintiff was bona fide and reasonable ?"
7. While dealing with the issues No. 6 & 7 of reasonable and bonafide require ment and comparative hardship, the Trial Court having considered the evidence concluded that the suit shop is situated in Sarafa Bazar and the same is suitable for that business; that the plaintiff carried on Sarafa business for 10 to 12 years in a rented shop which was got vacated by its landlord in November, 1973; that the plaintiff has no other shop except the suit shop and the suit shop was purchased by him vide registered sale deed Ex.16 on 22.11.1975 to carry on his own business; that after November, 1973 the plaintiff sometimes used to suit at his house and sometimes used to sit with his father to carry on Sarafa business. In view of the above findings, it was held that the plaintiff's requirement of the suit shop is bonafide and reasonable arid comparative hardship would also be caused to the plaintiff in comparison to the present occupants of the suit shop as legal heirs of the original tenant Sh. Chiranji Lal.
8. In first appeal, these findings of facts were affirmed. In Mattulal v. Radhe Lal, (A.I.R. 1974 Supreme Court 1596), relied upon by learned Senior Counsel Sh. Mehta it has been held that the finding on an appreciation of evidence that the landlord does not bonafide require the premises in question is a finding of fact and not a finding of mixed law and fact and it cannot be interfered with by the High Court in second appeal.
9. The First Appellate Court haying affirmed the finding of reasonable and bonafide requirement of the landlord proceeded further to examine the question of requirement on further subsequents which took place during the pendency of the first appeal. It is not in dispute that the plaintiff's father Sh. Damodar Lal died in the year 1989 during the pendency of the first appeal. An application under Order 41 Rule 27 C.P.C. was moved on behalf of the defendants-appellants with the averments that on account of death of Sh. Damodar Lal now the adjoining shop is available with the plaintiff to carry on his business. It was also averred that the plaintiff was already carrying on his business in this adjoining shop and thus the requirement of the plaintiff exists no more. In reply of this application, it was pleaded by the plaintiff-respondent that after the death of his father his son Shambhu Dayal is doing his business in this adjoining shop. The First Appellate Court vide order dated 5.5.1993 proceeded to record the evidence of the parties on the subsequent events. The defendants-appellants examined six witnesses namely Rajesh Kumar Sharma, Ghanshyam (the appellant), Ramji Lal, Triloki, Ram Charan and Fakir Mohammed. Six witnesses were examined on behalf of the plaintiff-respondent namely Smt. Suraj, Girraj Prasad Gupta, Babu Lal Bansal, Kirorilal (the plaintiff), Shimbhu Dayal and Chandra Prakash.
10. Having considered the evidence in the first appeal it was held by the First Appellate Court that prior to the death of plaintiff's father Damodar Lal, both Damodar Lal and the plaintiff were carrying on their business in this adjoining shop and after the death of Damodar Lal, the plaintiff alone is carrying on his business in this shop and thus the requirement of the plaintiff for the suit shop stands satisfied. In the result, the judgment and decree of eviction were set aside.
11. Learned counsel for the plaintiff-appellant contended that the findings on subsequent events are the findings of the First Appellate Court recorded for the first time, hence this Court has to consider and appreciate the evidence recorded in the first appeal. This submission appears to be well founded. It was next contended that the First Appellate Court did not consider the evidence produced by the plaintiff-respondent; that the plaintiff purchased the suit shop in the year 1975 to carry on his business as he was evicted by the earlier landlord in November, 1973; that the First Appellate Court did not consider the evidence that the plaintiff's son Shambu Dayal had been sitting with his grand- father Damodar Lal in the adjoining shop; that the First Appellate Court did not take into consideration these facts that all the four sons of the plaintiff had become major during the pendency of these proceedings of eviction and thus there was no ground to set aside the judgment and decree of the Trial Court. He placed reliance upon Gaya Prasad v. Pradeep Srivastava, ((2001) 2 Supreme Court Cases 604). In this case, the landlord filed an eviction petition against the tenant in the year 1978 on the ground of bonafide need for use partly as a clinic by his son who had just qualified as a doctor and to accommodate a post-retirement radio repair business for himself. Eviction was ordered in March, 1982 and the tenant's appeal was dismissed in October, 1985. In that same year, the tenant's writ petition was admitted by the High Court and stay of eviction was granted. In the year 2000, the writ petition was finally dismissed. In 1990, during its pendency the respondent's son joined the Provincial Medical Service and was posted 200 km away from Agra. Relying on these later developments, the tenant filed a revision petition before the High Court which was dismissed.
12. Before the Hon'ble Supreme Court it was urged on behalf of the tenant that subsequent developments should be taken into account, in particular, where the premises were sought for the personal use of the landlord, or members of his family. Dismissing the appeal, the Hon'ble Supreme Court held that the crucial date for deciding the bonafides of the requirement of the landlord is the date of application for eviction. If every subsequent development during the post-petition period is to be taken into account for judging the bonafides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in the litigative slow-process system subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of litigation the more would be the number of the developments sprouting up during the long interregnum. It would be pernicious and unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period. Subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events." It was further observed that "the judicial tardiness, for which unfortunately the Indian system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate terminus, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused." Similar view was taken by this Court in LRs. of Ishwari Lal v. Hira Lal, (2004 (2) R.C.R. 105).
13. Per contra, learned senior counsel Sh. Mehta contended that the need of the plaintiff as pleaded in para 6 of the plaint is that the suit shop is required for the plaintiff himself to carry on his Sarafa business and thus now no such stand can be taken that the plaintiff's requirement is for his sons. He placed reliance upon Laxmi (Smt.) Alias Anandi and Ors. v. C. Setharama Nagarkar and Ors., (1195 Supp (4) Supream Court 143). In this case, the landlord sought eviction inter-alia on the ground of bonafide and reasonable requirement. The Trial Court passed an order of eviction. In appeal, the District Judge reversed the findings of the Triai Court on the first two grounds and upheld it on the ground of sub-letting. The High Court rejected the landlord's revision on the ground of bonafide need. The original plea of the landlord was that he required the suit premises for his mother's residence. The mother expired during the pendency of the proceedings. The landlord had then, taken the plea that he wanted the suit premises for his own occupation. The District Judge and the High Court upheld the tenant's contention that this subsequent plea required investigation on facts and could not be entertained in a revision petition. The Hon'ble Supreme Court upheld that the High Court was right in the view that it took as the facts necessary to make out a case relating to the need of the landlord to occupy the suit premises are altogether different from those relating to the need of the landlord's mother to occupy the suit premises. The facts establish that the landlord bonafide required the suit premises for his own occupation could not have been ascertained at the stage of the revision petition.
14. I have considered the above submissions of learned senior counsel Mr. Mehta in the light of the judgments of the Hon'ble Supreme Court and am of the view that in the facts and circumstances of that case which are quite distinct from the facts and circumstances of the instant case, this judgment is not applicable in the present case, because the First Appellate Court set aside the judgment and decree of the Trial Court only on account of subsequent events which took place during the pendency of the first appeal. In the fact situation, the contention of the plaintiff-respondent that in the meantime the plaintiff's four sons have become major and except two sons Shambhu Dayal and Prakash Chandra the remaining two sons are sitting idle and thus the requirement of the plaintiff for the suit shop does not come to an end. These were also the subsequent events and in case the Appellate Court set aside the judgment and decree of eviction only on the basis of the subsequent events, then in that case subsequent events which took place in landlord's favour should have also been taken into consideration but the First Appellate Court entirely failed to take these facts into consideration.
15. Apart from this, in view of the judgment of the Hon'ble Supreme Court delivered in Gaya Prasad's case (supra), and one judgment of this Court delivered in LRs. of Ishwari Lal's case (supra), the First Appellate Court was not justified in dismissing the landlord's suit for eviction only on account of the subsequent event which took place 12 years after the filing of the suit for eviction. It is significant to say here that the defendants-appellants are the tenant since 1.1.1965. The plaintiff was carrying on his business in rented shop which was got vacated by its landlord in November, 1973. Thereafter, the plaintiff purchased the suit shop in November, 1975 to carry on his own business and the present suit for eviction was filed on 11.5.1977. After a prolonged trial,; the Trial Court decreed the suit on 2.6.1988. During the pendency of the first appeal the plaintiff's father died in the year 1989. Thus, a period of about 27 years has passed so far from the date of the institution of the present suit. As observed by the Hon'ble Supreme Court in para 13 of the judgment delivered in Gaya Prasad's case (supra), the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events and not every subsequent event. The present case stands fully covered by the judgment of Hon'ble Supreme Court delivered in Gaya Prasad's case (supra).
16. Learned senior counsel Mr. Mehta placed reliance upon some of the judg ments. In Sheel Chand v. Prakash Chand, ((1998) 6 Supreme Court Cases 683), it has been held that second appeal Under Section 100 C.P.C. can be heard only on substantial question of law and such substantial question of law must be formulated by the High Court. Similar view was taken in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, ((1999) 2 Supreme Court Cases 471), Mohd. Amirullah Khan and Ors. v. Mohd. Hakumullah Khan and Ors., ((1999) 3 SCC 733), Arumugham (dead) by LRs. and Ors. v. Sundarambal And Anr., ((1999) 4 SCC 350), Hari Singh v. Kanjiaiya Lal, ((1999) 7 Supreme Court Cases 288), Har Narain Daga v. Heeralal and Ors., ((2001) 1 Supreme Court Cases 41), and Rajendra Kumar v. Jamna Das Kotewala, (1990 U.J. (S.C.) 582). It is settled position of law that the High Court can interfere In second appeal Under Section 100 C.P.C. only when a substantial question of law arises. In the instant case as state here in above the First Appellate Court first affirmed the findings of the Trial Court on the questions of reasonable and bonafide requirement of the plaintiff as well as comparative hardship but set aside the judgment and decree of the Trial Court only on the subsequent events. As discussed here in above, the decision of the First Appellate Court on the subsequent events cannot be justified in any way.
17. Consequently, this appeal is allowed, the impugned judgment and decree dated 21.9.1993 passed by learned Additional District Judge, Karauli are set aside and the judgment and decree of the Trial Court dated 2.6.1988 are hereby restored. Two months' time is allowed to the defendants to handover the vacant possession of the suit shop to the plaintiff-appellant. No order as to costs.