Rajasthan High Court - Jaipur
Kali Charan Through Lr vs M/S Sancheti Brothers on 13 September, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 113/2010
Kalicharan S/o Shri Sohan Lal, AMC No. 866/25,
Pahadganj, Ajmer (Dead) Through Legal Heirs
1. Umesh C. Sharma, Station Superintendent Rtd., Western
Railways, Ajmer (Dead) Through Legal Heirs
1/1. Vikrant Sharma, W/o Late Shri Umesh Sharma,
1/2. Smt. Umesh Sharma W/o Late Shri Umesh Sharma, 16,
Kailash Park Colony, Geeta Bhawan, Indore
2. Chunni Lal S/o Shri Kalicharan, House No.866/25-845/25,
Pahadganj, Ajmer
----Appellants-defendants
Versus
1. M/s. Sacheti Brothers, Substituted By Kushal Chand Sacheti
Through Legal Heirs:
1/1. Kamal Chand son of late Shri Kushal Chand Shah Sancheti.
1/2. Shekhar Chand son of late Shri Kushal Chand Shah Sancheti
both residents of Lakhan Kothri, Durga Bazar, Ajmer.
----Respondent-plaintiffs
For Appellant(s) : Mr. Ajeet Kumar Sharma Sr. Adv. with
Mr. Rachit Sharma
For Respondent(s) : Mr. Ajeet Kumar Bhandari Sr. Adv.with
Mr. Jitendra Mishra
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
13/09/2022
Reportable
1. Legal representatives of original defendant Kalicharan have
preferred this second appeal under Section 100 of CPC, assailing
the judgment and decree dated 06.2.2010 passed in Civil Regular
First Appeal No.271/2004 (262/2009) by the Court of Additional
District Judge (Fast track) No.4, Ajmer, affirming the judgment
and decree dated 24.9.2004 passed in Civil Suit No.58/95
(9/2002) by the Court of Additional Civil Judge (Senior Division)
No.2, Ajmer whereby and whereunder the decree for eviction and
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arrears of rent has been passed in favour of respondents-plaintiffs
and against defendants- present appellants.
2. The relevant facts of the case, in brief, are that respondents-
landlord instituted civil suit on 16.2.1987 against defendant
Kalicharan, in relation to shop in question situated at Madargate,
Ajmer which was let out in the year 1948 at the rate of Rs.44/-
per month in the name of one Naval Kishore, who happens to be
the younger brother of defendant Kalicharan. It was stated in the
plaint that original tenant Naval Kishore has died on 28.12.1986
and defendant Kalicharan was in Railway service, who never did
any business with tenant Naval Kishore in the rented shop,
therefore, tenancy rights not devolve upon the defendant and
further rent for the shop in question has also not been paid,
therefore, plaintiff prayed for due arrears of rent and for
possession of the rented shop from defendant Kalicharan.
3. The original defendant Kalicharan submitted his written
statement stating that shop in question was taken on rent by him
being karta of the joint Hindu family in the name of his brother
Naval Kishore who was carrying on business of shoe selling in the
name of N.K. Handloom and he used to help Naval Kishore in the
business, therefore, tenancy rights have devolved upon him and
he is having possession of the suit shop, in the capacity of tenant.
4. After institution of suit defendant Kalicharan passed away,
therefore, his legal representatives were brought on record. After
substitution of legal representatives of original defendant
Kalicharan, when the suit was at the stage of recording evidence,
an application dated 26.05.1994 under Order VI Rule 17 CPC was
moved by plaintiff seeking an amendment in the plaint stating
inter alia that at the time of institution of present suit, the rate of
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rent as determined in another civil suit No.209/77 vide judgment
dated 9.2.1982 was at the rate of Rs.131.25/- per month but in
appeal, vide judgment dated 2.6.1990, rate of rent has increased
to Rs.218.75/- per month, therefore, plaintiff claimed arrears of
rent at the enhanced rate of Rs.218.75/- per month instead of at
the rate of Rs.131.25/- and prayed for addition of ground of non-
user for eviction of defendant. In relation to addition of the ground
of non-user, it was pleaded that since defendant Kalicharan has
claimed himself to be tenant, in the rented shop in question, on
the plea that the shop in question was taken on rent by him in the
capacity of Karta of Hindu Undivided Family in the name of his
younger brother Naval Kishore and he was used to sit in the
rented shop with Naval Kishore to render help in carrying out the
business of shoe selling but Kalicharan has died after filing of the
suit and other members of HUF, have come on record as legal
representatives of deceased defendant Kalicharan, therefore, in
that view, plaintiff pleaded in the application for amendment that
if defendants are held and treated as tenant, then since the shop
in question is laying closed continuously for last more than six
months and no business has been carrying on therein, therefore,
plaintiff be allowed to add a ground of non-user, on the basis of
which he is entitled to evict defendants from the rented shop.
It is worthy to note here that the amended plaint with
incorporation of the proposed amendments after para No.7 in form
of new paras No. 7 क, 7 ख, 7 ग was also presented on record on
8.7.1994.
5. The substituted defendants also claimed themselves to be
tenant in the rented shop and opposed the application seeking
amendment in the plaint on the ground that a new cause of action
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to add the ground of non-user cannot be allowed in the present
suit as same would change the nature of suit and would cause
prejudice to defendants.
6. Application for amendment was allowed by the trial Court
vide order dated 18.5.1995 and defendants were granted
opportunity to file written statement to the amended plaint.
Since by allowing the amendment, the quantum of arrears of rent
which allowed to be amended to be claimed at the rate of
Rs.218.75/- instead of Rs.131.25/- was also allowed, therefore,
the amended plaint travelled beyond the pecuniary jurisdiction of
the Court and as such same was return to plaintiff for presentation
before the Competent Court of pecuniary jurisdiction. Accordingly,
amended plaint was presented by plaintiff before the Competent
Court of pecuniary jurisdiction on 3.6.1995.
7. Defendants submitted their written statement to the
amended plaint and while alleging themselves to be tenant in the
shop in question, categorically denied the ground of non-user
stating inter alia that the shop in question never remained closed
for a continuous period of six months rather business is being
carrying on therein. Thus, no ground of non-user is made out.
8. As per rival pleadings of parties, as many as thirteen issues
were framed by the trial Court. This Court is concerned with issue
No.5 which is in relation to non-user of the shop in question for a
continuous period of six months prior to filing of the suit. Other
issues are in relation to devolution of tenancy rights upon
defendants and relating to default and recovery of arrears of rent.
The trial Court found that original defendant Kalicharan was used
to sit in the rented shop with original tenant Naval Kishore and
tenancy rights have been devolved upon him as well as upon the
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substituted defendants i.e. present appellants. The issue of default
was decided against plaintiff but issue No.5 was decided in favour
of plaintiff and decree for eviction on the ground of non-user along
with arrears of rent and future mesne profits at the rate of
Rs.218.75/- per month was passed in favour of plaintiff vide
judgment dated 24.9.2004.
9. Present appellants-defendants challenged the judgment and
decree for eviction dated 24.9.2004 by way of filing first appeal.
In the first appeal, defendants challenged the order dated
18.5.1995, allowing the application under Order VI Rule 17 CPC
filed by plaintiff in respect of allowing to add the ground of non-
user. The first Appellate Court, after considering the nature of
dispute in the present suit between parties, affirmed the order
dated 18.5.1995 and upheld the amendment allowing to add the
ground of non-user in the present suit. The first Appellate Court
after considering pleadings of amended plaint and after
appreciation of entire evidence of both parties, affirmed findings of
the trial Court on issue No.5 and sustained the decree for eviction
passed on the ground of non-user as provided under Section 13(1)
(j) of the Rajasthan Premises (Control of Rent and Eviction) Act,
1950 (hereinafter referred to as " the Act of 1950"). Finally, the
first appeal was dismissed vide judgment dated 06.2.2010 and
decree for rent and eviction dated 24.9.2004 was affirmed.
10. The trial Court, after appreciation of evidence has held
defendants as tenant and such findings of trial Court have been
accepted by the plaintiff and have not been assailed as such have
attained finality and were neither under consideration in the first
appeal nor in present appeal. The issue falls for consideration is in
respect of sustainability of the decree for eviction passed on the
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ground of non-user of rented shop, for a continuous period of six
months preceding to the date of suit, as envisaged under Section
13(1)(j) of the Act of 1950. Both Courts below have concurrently
held that ground of Section 13(1)(j) is proved and against
concurrent findings of fact, this second appeal has been preferred
by defendants.
11. In the memo of second appeal, defendants have not pleaded
any ground challenging judgments of Courts below dated
06.2.2010 and 24.9.2004 and have not pleaded any reasons as
how and in what manner impugned judgments suffer from
perversity or are not sustainable. A perusal of memo of amended
appeal goes to show that, after mentioning brief facts giving rise
to file the second appeal, only substantial questions of law from A
to I have been incorporated stating that these substantial
questions of law need to be decided by this Court. The memo of
appeal is not in accordance with the form of appeal, as envisaged
under provisions of Order XLI Rule 1 CPC and as such is defective.
12. The Coordinate Bench of this Court vide order dated
24.8.2011, after hearing counsel for both parties, selected
following substantial questions of law as proposed and
incorporated by appellant in his memo of appeal, for consideration
in the present second appeal:
"(1) Whether on facts and material on record,
the courts below have acted illegally, arbitrarily and
perversely in holding that the suit premises have not
been used for a continuous period of six months
immediately preceding the date of the suit?
(2) Whether on facts and in the circumstances
of the case the plaintiff-respondent can be held to
have proved the ground of eviction against the
defendant-appellants under Section 13(1)(j) of the
Act and whether the finding recorded by the courts
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below on Issue No.5 in respect thereof is perverse,
untenable and unjustified?
(3) Whether the courts below while deciding
Issue No.5 have acted illegally in computing the
relevant period of six months immediately preceding
the date of the suit and the impugned judgments
and decrees passed by the courts below stand
vitiated on this count rendering the same liable to be
quashed and set aside by this Court?
(4) Whether the courts below have acted
illegally and unreasonably in making out a new case
for the plaintiff-respondent and improperly shifting
the burden upon the defendants regarding non-user
of suit shop for period of six months from January,
1994 to June, 1994 which was not the relevant
period immediately preceding the date of the suit? If
not, whether the findings recorded by the courts
below about alleged non user of shop from January,
1994 to June, 1994 was perverse and unsustainable
on the basis of the material on record?
(5) Whether the courts below have acted
illegally in allowing and sustaining the application
filed by the plaintiff-respondent under Order 6 Rule
17 CPC seeking amendment in the plaint whereby
the plaintiff-respondent was permitted to substitute
one distinct cause of action for another and to
change the subject matter of the suit and whether
order dated 18.5.1995 passed by the trial Court
allowing the amendment application and the same
being upheld by the first appellate court in its
judgment dated 06.2.2010 are legally sustainable?"
13. Heard learned Senior Counsel for both parties at length,
perused the impugned judgment and scanned the record. In the
record of trial Court, relevant papers and order-sheets prior to
08.08.1995 are not available. However, counsel for respondents
has made available certified copy of the order dated 18.05.1995, allowing application for amendment.
14. Substantial questions of law referred hereinabove, fundamentally relate to the legality and sustainability of the order dated 18.5.1995, allowing the application for amendment in the plaint in respect of allowing to add a ground of non-user as also (Downloaded on 25/12/2022 at 08:00:40 AM) (8 of 33) [CSA-113/2010] about the perversity regarding the fact findings of Courts below in respect of issue No.5, related to the ground of non-user. Before dealing with substantial questions of law No.1 to 4 which pertain to the ground of non-user, this Court deems it just and proper to deal with the substantial question of law No.5, first, which pertains to challenge to the interlocutory order dated 18.5.1995, allowing to add the ground of non-user in the plaint.
15. Substantial Question of Law No.5:
"(5) Whether the courts below have acted illegally in allowing and sustaining the application filed by the plaintiff-
respondent under Order 6 Rule 17 CPC seeking amendment in the plaint whereby the plaintiff-respondent was permitted to substitute one distinct cause of action for another and to change the subject matter of the suit and whether order dated 18.5.1995 passed by the trial Court allowing the amendment application and the same being upheld by the first appellate court in its judgment dated 06.2.2010 are legally sustainable?"
16. Learned Senior Counsel appearing for appellants has urged that by allowing the application for amendment of plaintiff, a new cause of action relating to non-user of the rented shop has been inserted in the plaint and due to which the nature of suit has drastically been changed. He placed much emphasize is on the point that the ground of non-user requires to be considered in the light of ingredients as envisage under Section 13(1)(j) of the Act of 1950 which make it mandatory to consider that the premise was closed for a continuous period of six months "immediately preceding the date of suit". He submits that by allowing the amendment, a serious confusion has arisen as to from which date, a period of six months would be counted and what would be the date of suit. Thus, he submits that a serious prejudice has caused to appellants by allowing the application for amendment and (Downloaded on 25/12/2022 at 08:00:40 AM) (9 of 33) [CSA-113/2010] therefore, the order dated 18.5.1995 itself stands bad in law as such not sustainable in the eye of law.
17. Per contra, counsel appearing for respondents have vehemently argued that the cause of action for invoking the ground of non-user was accrued during course of suit and when the defendants were claiming themselves to be tenant in the rented shop, plaintiff made an alternative prayer for eviction on the ground of non-user of rented shop, to be added the suit. He submit that on the basis of new cause of action, plaintiff-landlord could have initiated another suit for eviction against defendants in relation to rented shop but when already a civil suit was pending between parties in relation to rented shop. He prayed amendment in the pending suit and the trial Court has rightly exercised its discretion in allowing the amendment to include the new cause of action in the pending suit and to try the ground of eviction of non- user in the same suit, instead of compelling the plaintiff-landlord to institute an another separate suit. He submitted that after allowing the amendment, and addition of the ground of non-user, defendants have been given opportunity to file written statement to the amended plaint and defendants have filed amended written statement as also have adduced complete evidence to rebut the ground of eviction and thus, no prejudice whatsoever has been caused to the defendants. He submitted that the application for amendment filed by plaintiff was bonafide and allowing the amendment did not cause such prejudice to the other side which cannot be compensated adequately in terms of money rather on the contrary, refusing amendment would lead to multiplicity of proceedings between same parties in relation to same property of rented shop.
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(10 of 33) [CSA-113/2010] 18. Counsel for respondents have placed reliance on the
judgment of Shyam Sunder Vs. Prakash Chand [2012 (4) WLC 624]. In this judgment, the Single Bench of this Court opined that "it is well settled legal proposition that a new ground of eviction can be taken by landlord at any stage of proceedings and such amendment does not adversely affect the cause of action already taken by the landlord in the suit. It is possible in a case that cause of action in respect of a new ground of eviction arises subsequently after institution of the suit during pendency of suit and if it is so, the amendment in the plaint on the basis of such new ground of eviction cannot be refused only on the ground that at some earlier point of time an undertaking was given by the landlord that he would not seek amendment in the plaint. It cannot also be said that by his conduct of giving undertaking the respondent waived his right of seeking amendment in the plaint and he was stopped to seek amendment incorporating a new ground of eviction on the basis of reasonable and bonafide necessity or any other ground"
19. Concededly, the well settled legal position is that an amendment in pleadings may not be claimed as a matter of right and allowing/disallowing the application seeking amendment in pleadings is a matter of judicial discretion of the Court which obviously should be exercised with care and caution and should never be undertaken in a casual manner. Courts must not refuse bonafide, legitimate, honest and necessary amendments and simultaneously should not permit malafide worthless and dishonest amendments.
20. The Hon'ble Supreme Court, in case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons [(2009) 10 (Downloaded on 25/12/2022 at 08:00:40 AM) (11 of 33) [CSA-113/2010] SCC 84] after critically analyzing both English and Indian cases relating to the issue of allowing/disallowing the amendment in pleadings have outlined few factors required to be taken into consideration, while dealing with applications for amendments as under:
"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amendment claims would be barred by limitation on the date of application."
The Supreme Court opined that these factors are some of important factors which are only illustrative and not exhaustive and should be taken into consideration while allowing or rejecting the application for amendment.
21. The Hon'ble Supreme Court, in case of Sampath Kumar Vs. Ayyakannu and Anr. [(2002) 7 SCC 559] while discussing the issue related to amend pleadings of plaint observed that if it is permissible for the plaintiff to file an independent suit on the basis of a new cause of action which has arisen to the plaintiff during (Downloaded on 25/12/2022 at 08:00:40 AM) (12 of 33) [CSA-113/2010] pendency of suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In fact, allowing amendment would curtail multiplicity of proceedings. In this case, the Supreme Court also followed the principle of law enunciated in case of Rukhmabai Vs. Lala Laxminarayan [AIR 1960 SC 335] wherein a view was taken that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendments if he seeks to do so.
22. The Supreme Court in case of Pirgonda Hongaonda Patil Vs. Kalgonda Shidgonda Patil & Ors. [AIR 1957 SC 363] opined that all amendments ought to be allowed which satisfy the two conditions:
(a) Not working injustice to the other side, and
(b) of being necessary for the parties of determining the real question in controversy between parties.
The Court held that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.
23. In the case at hand, initially when the suit was filed in relation to the rented shop in question, it was pleaded by plaintiff that the original defendant Kalicharan was in Government job and after death of original tenant Naval Kishore, the tenancy rights do not devolve upon him. Defendant Kalicharan took a plea that shop was taken on rent in the capacity of Karta of Hindu Undivided (Downloaded on 25/12/2022 at 08:00:40 AM) (13 of 33) [CSA-113/2010] Family in the name of his younger brother Naval Kishore and therefore, defendant Kalicharan as well as after his death the other successors who were brought on record as defendants, claimed devolution of tenancy rights to them in respect of the shop in question. Issues No.1 and 3 were also framed in that respect.
24. In the backdrop of such nature of dispute between parties, related to eviction of defendants from rented shop, plaintiff has moved an application for amendment dated 26.05.1994, seeking to add an alternative plea that if defendants are held and treated as tenant, an alternative prayer of eviction on the ground of non- user of rented shop be allowed to be added. The shop in question was laying closed continuously for last six months and no business was being carried out therein, therefore, the plaintiff claimed for passing the decree of eviction on the ground of non-user as stipulated under Section 13(1)(j) of the Act of 1950. Along with seeking addition of the ground of non-user, since after filing of the suit, the rent was determined at the higher rate of Rs.218.75/- in an another appeal No.247/1986 vide judgment dated 2.6.1990, therefore, arrears of due rent were also sought to be added with increased rate of rent i.e. Rs.218.75/- per month, instead of the earlier claimed rent at the rate of Rs.131.25/- per month.
25. The trial Court, after considering the nature of dispute and hearing both parties, allowed the application of amendment vide order dated 18.5.1995. The amended plaint incorporating the proposed amendment was already presented on 8.7.1994 itself which was taken on record. Since due to allowing to add due arrears of rent with increased rate of rent, the pecuniary jurisdiction of the trial court became changed and consequently, (Downloaded on 25/12/2022 at 08:00:40 AM) (14 of 33) [CSA-113/2010] the amended plaint was returned to be presented before the Court having competent pecuniary jurisdiction to decide the present suit. Accordingly, the amended plaint was presented before the higher Court having the pecuniary jurisdiction on 3.6.1995.
26. Thereafter, defendants have been permitted to submit their amended written statement to the amended plaint. New issues were framed according to amended pleadings of parties and both parties have undertaken fullest opportunity to adduce their respective evidence including on the amended part of pleadings. Therefore, it cannot be said that the defendants have suffered any prejudice by allowing the amendment to add the ground of non- user. It is also settled proposition of law that if on the basis of new cause of action, accrued during the pendency of the suit, any fresh suit can be filed, then amendment in the pending suit can be allowed to include new cause of action as well in the pending suit, as allowing the amendment would curtail the multiplicity of litigation.
27. As far as grievance raised by counsel for appellants- defendants that a serious confusion has arisen about the date from which period of six months would be counted and what should be the date of suit is concerned, firstly, defendants have already filed amended written statement and have adduced evidence. The plea of defendants taken in the written statement that the rented shop never remained closed for a continuous period of six months, has been analyzed by the trial Court as per evidence adduced by parties on merits and secondly, such point pertain to the merits of amendment, which shall be considered and decided while dealing with other substantial questions of law relating to the issue of non-user, therefore, in such scenario, it (Downloaded on 25/12/2022 at 08:00:40 AM) (15 of 33) [CSA-113/2010] may not be held that appellants-defendants have been prejudiced in any manner by allowing the amendment and the order dated 18.5.1995 may not be held bad in law.
28. Defendants, assailed the order of allowing amendment dated 18.5.1995 while filing the first appeal against the final judgment and decree for eviction dated 24.9.2004 and the first Appellate Court has again considered the sustainability of order dated 18.5.1995, while deciding the first appeal vide judgment impugned dated 06.2.2010. The first Appellate Court has categorically observed that the trial Court has exercised its discretionary power in allowing the amendment of plaint within parameters of law and same does not cause any prejudice to defendants in any manner, thus, the order of allowing amendment was not interfered with, rather affirmed.
29. This Court, having considered the proposition of law regarding the jurisdiction vested with Courts to allow or reject the amendment application as referred hereinabove and having considered the factors as propounded by the Hon'ble Supreme Court in judgments referred hereinabove, has its concurrence with the view taken by the first Appellate Court to sustain the order dated 18.5.1995, passed by the trial Court, allowing the application for amendment in the plaint. There is no illegality in the order dated 18.5.1995 and same is within parameters of law and sustainable in the eye of law. Thus, the question of law No.5 is answered accordingly and stands decided against appellants.
30. Substantial Questions of Law No.1 to 4:-
31. All four substantial questions of law are co-related and pertain to the perversity in impugned judgments in respect of passing the decree for eviction on the ground of non-user, (Downloaded on 25/12/2022 at 08:00:40 AM) (16 of 33) [CSA-113/2010] therefore, all are being considered and decided simultaneously as under:
Before dealing with questions of law No.1 to 4, this Court deems it just and proper to have a look upon the provision of Section 13(1)(j) of the Act of 1950 which provides a ground of eviction to the landlord against the tenant. As per Section 13(1)(j) of the Act of 1950, a decree for eviction may be passed in favour of landlord, if the Court is satisfied that the premises-
(i) have not been used
(ii) without reasonable cause
(iii) for the purpose for which they were let......
(iv) for a continuous period of six months.....
-immediately preceding the date of suit, or"
32. The ground of non-user was prayed to be introduced by plaintiff by way of application for amendment dated 26.05.1994. The amended plaint, incorporating the proposed amendment with addition of para Nos. 7 क, 7 ख, 7 ग also placed on record on 8.7.1994 itself. The application for amendment has been allowed by the trial Court vide order dated 18.5.1995. Defendants have submitted written statement and denied the ground of non-user. In the written statement, defendants have not pleaded any confusion as to which date, the period of six months for continuous closure of the rented shop be counted. The defendants have categorically denied the factum of closer of rented shop for a continuous period of six months. According to the respective pleadings of parties, in context to the amended plaint and amended written statement, specific issue No.5 relating to the ground of non-user was framed by the trial Court. Both parties, have led their evidence with full awareness and consciousness (Downloaded on 25/12/2022 at 08:00:40 AM) (17 of 33) [CSA-113/2010] about the ground of non-user which is required to be examined within the parameters of Section 13(1)(j) of the Act of 1950;
33. Learned trial Court has decided issue No.5, reckoning the period of six months from 8.7.1994, it means when plaintiff filed the amended plaint incorporating the ground of non-user. Thus, the trial Court has considered the period from January, 1994 to June, 1994, which is preceding period of six months prior to the amended suit wherein the ground of non-user was incorporated in the present case, the ground of non-user has been sought to be added by way of application for amendment and amended plaint was filed on 08.07.1994, therefore, the date of suit for the purpose of analyzing the ground of non-user has been rightly taken the date of which the application for amendment was filed and the amended plaint was produced on record.
34. In this regard, the legal proposition of law is well clear that it is not a universal and absolute principle of law that amendment, if allowed to be incorporated in the plaint, same should relate back to the date of suit but same would depend on facts and circumstances of each case. In the present case, when a ground of non-user has been sought to be added by way of application for amendment, and the amended plaint was placed on record on 8.7.1994, therefore, for the purpose of this ground of non-user as enshrined under Section 13(1)(j) of the Act of 1950, the date of suit would be 8.7.1994 only and the date of suit i.e. 16.2.1987 has to be ignored as in original suit ground of non-user was taken. Theory of relation back does not apply to the facts of present case.
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35. In respect of the issue as to for the purpose of considering the ground of eviction of non-user as enshrined under Section 13(1)(j) of the Act of 1950 in the present suit, what should be treated "the date of suit" it means the date of original suit i.e. 16.2.1987 or the date of amended suit filed after incorporation of the ground of non-user on 8.7.1994, view of the following judgments may be considered.
36. This Court, in case of Chandgi Ram Vs. Babulal [1997 (2) WLC (Raj.) 624] considered the question "Whether amendment made in the plaint under Order VI Rule 17 CPC of the Code of Civil Procedure, during pendency of suit will relate back to the date of filing of suit or proceedings on the new ground shall begin from the date of filing of amended plaint?" The question emerges in the background of facts that suit for eviction, on the ground of default, material alternation and nuisance was filed on 18.3.1986. During pendency of suit, another ground of reasonable and bonafide requirement of rented premise was incorporated by way of moving an application under Order VI Rule 17 CPC which was allowed on 11.7.1995 and amended plaint was filed on 24.7.1995. The issue arose, in the light of Section 14(3) of the Act of 1950 which restricts eviction on the ground of reasonable and bonafide necessity, before the expiry of five years from the date of letting out the premise. On the date of filing original suit, five years were not completed from the date of tenancy but by the time, ground of bonafide and reasonable requirement was added, period of five years has expired. The trial Court, treated the amendment effective from the date of filing of original suit and as such suit was held not maintainable on the ground of bonafide necessity but the High Court, while considering the question, placed reliance (Downloaded on 25/12/2022 at 08:00:40 AM) (19 of 33) [CSA-113/2010] upon a celebrated judgment of Hon'ble Supreme Court in B.Banerjee Vs. Smt. Anita Pan [AIR 1975(SC) 1146] and held that in order to interpret the provisions of Order 14(3) of the Act, the first date of institution of original suit has to be ignored and for the purpose of considering the suit for eviction on the ground of bonafide necessity, incorporating by way of amendment, proceedings of suit should be treated to begin on July 24, 1995 when the amended plaint incorporating the new ground was filed. The Court held that in such situation, the new ground of bonafide necessity added by way of amendment, shall not relate back to the date of filing of suit but shall be treated effective from the date of filing of the amended plaint.
37. This Court in case of Ranchod B. Das Vs. LRs of Kanhaiya Lal [2005 (2) WLC (Raj.) 10] considered the catena of judgment delivered by the Hon'ble Supreme Court and after considering the case law held that "doctrine of relation back of the amendment of plaint is held to be a proposition which generally governs the subject and not a rule of law or procedure governing all cases."
38. The Hon'ble Supreme Court in case of Sampath Kumar (supra) while dealing with the issue of doctrine of relation back in context to the amendment in pleadings, observed in para 10 as under:
"An amendment once incorporated related back to the date of the suit. However, the doctrine of relation- back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed."
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39. This Court, in case of Dr. Kedar Nath Vs. Smt. Dhapu Kanwar [2005(1) WLC (Raj.) 300] considering the similar issue as arose in the present case, in respect of considering the effectivity of the amendment at the ground of non-user to determine the period "immediately preceding the date of suit" as envisaged under Section 13(1)(j) of the Act of 1950. The Court placed reliance on the decision of Chandgi Ram (supra) and observed that "the ground under Section 13(1)(j) of the Act of 1950 was not available to the plaintiff-landlord at the time of filing of the suit originally but according to the plaintiff, this ground arose during pendency of suit, hence, the ground of non-user of the rented shop was introduced by way of amendment in the original suit, with permission of Court and therefore, the new ground of eviction added by way of amendment and which arose during pendency of suit, shall not relate back to the date of institution of the original suit but would be effective on the date when amended plaint was filed. In this case, the Co-ordinate Bench of this Court, also considered two judgments passed in case of Pooran Mal Vs. Rahman [RLR 1992 (1) 206] and Gauri Lal Vs. Gurjar Mal [RLR 1992 (1) 75] and observed that in both judgments, while interpreting the words "immediately preceding the date of suit", it was held that tenant shall be liable to eviction if it has proved that tenant has not used the premises for a continuous period of six months just before institution of date of suit but the issue about effectivity of the amendment to consider the period of six months preceding to the date of original suit or to the date of amended suit, did not arise for consideration in these two judgments. Finally, after considering the issue exhaustively, the Court held that for the purpose of considering the ground of (Downloaded on 25/12/2022 at 08:00:40 AM) (21 of 33) [CSA-113/2010] non-user added by way of amendment as a ground of eviction, the date of suit shall be, when amended plaint containing this ground was filed in the trial Court.
40. On going through a celebrated judgment passed by Hon'ble Supreme Court in case of B.Banerjee (supra), it appears that issue before the Supreme Court arose in respect of allowing or disallowing the amendment in the pending suit between landlord and tenant relating to incorporation of new cls. (f) and (ff) as included by the Amendment Act in Section 13 of the basic Act. Without allowing the amendment, the suit in question as they stand in unamended position, were liable to be dismissed on account of Omnibus inhibition on the recovery of possession contained in Section 13 itself but by allowing the amendment to seek eviction on the ground as inserted under Section 13 of the Act of 1950 by way of new cls. (f) and (ff), the suits by landlord could have proceeded. The Supreme Court was considering the provision of Section 13(1) and cls. (f) and (ff) and Section 13(3A) of the West Bengal Premises Tenancy Act (No.XII of 1956) (as amended by Act XXXIV of 1969). Suits instituted by landlord were based on the cls. (f) of the basic Act but cls. (f) replaced by way of Amendment Act with insertion of new cls. (f) and (ff). Thus, suits obviously were not based on the ground contended in cls. (f) and (ff). For invoking the grounds for recovery of possession as contained in the amended cls., the prohibition was clamped down by Sub-Section (3A). Considering the prohibition of the institution of suit within three years and whether allowing amendment of newly inserted provisions in the pending suits or not and which date be treated as effective, the Hon'ble Court expounded two principles:
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(i) We are satisfied that as far as possible Courts must avoid multiplicity of litigation, any interpretation of suit which will obviate purposeless proliferation of litigation, without whittling down the effectiveness of the protection for the parties sought to be helped by litigation, should be preferred to any literal, pedantic, legalistic or technically correct alternative. On this footing, we are prepared to interpret Section 13 of the Amended Act and give effect to Section 4 of that Act. Accordingly, the Supreme Court permitted plaintiffs, to file fresh pleadings setting out their grounds under cls. (f) and / or (ff) of Sub-Section 1 and Section 13.
(ii) Institution of a suit earlier has to be ignored for this purpose since that was not based on the grounds covered by cls. (f) and (ff) and is not attracted by Sub-
Section (3A). Plaintiff-landlord began proceedings of these new grounds only when they put in pleadings setting out these grounds. In spirit and in letter, plaintiff-landlord institutes his suit for recovery on new grounds only on the date of which he puts in his new pleadings.
The Supreme Court observed that we cannot be ritualistic in insisting that return of plaint and re-presentation thereof incorporating amendments as same is not the sacred requirement of the law. The social justice and substance of matter find fulfillment when fresh pleadings are put in subject to the three years interval between transfer and filing of the additional pleadings. It was also opined that opposite party tenant will be given an opportunity to file his written statement to the additional pleadings and the court will give opportunity to both sides to lead additional evidence and which is well deposed on the added pleadings.
41. Keeping in mind the proposition of law expounded in decisions referred hereinabove and applying such proposition of law on facts of present case, it can safely be held that neither the trial Court has erred in law in allowing the amendment in the plaint to add the ground of eviction of the non-user nor has erred (Downloaded on 25/12/2022 at 08:00:40 AM) (23 of 33) [CSA-113/2010] in treating the date of suit, for the purpose of considering the ground of non-user as the date of filing of amended plaint which is 8.7.1994. The original date of filing of the suit i.e. 16.2.1987 has rightly been ignored, at least for the purpose of deciding the ground of non-user as same was not incorporated in the original suit but arose during pendency of suit. Further it an undisputed position that after allowing the amendment of ground of non-user, defendants have been granted opportunity to file amended written statement and defendants have availed that opportunity by filing amended written statement, denying the ground of non-user on merits. The court is not oblivious to the position that after incorporation of amended pleadings relating to the ground of non-user, issue No.5 was framed and both parties have adduced their fullest evidence on this issue as a whole. There appears no confusion to either of the party, in treating the date of suit as date of filing the amended plaint as far as for the purpose of ground of non-user is concerned; Appellants-defendants have produced their evidence, in form of bills and vouchers from Ex.1 to Ex.236, in rebuttal to plaintiffs in respect of closure of rented shop. The trial Court, after appreciation of evidence of both parties, has considered the issue of non-user according to required ingredients of Section 13(1)(j), treating the date of suit as a date of filing the application for amendment and amended plaint incorporating the ground of non-user. Therefore, in totality of circumstances coupled with factual and legal aspect of present case, it may not be assumed for the argument sake that appellants-defendants remained under any confusing state of mind about the date of suit for the purpose of deciding the ground of non-user. The approach of the trial Court (Downloaded on 25/12/2022 at 08:00:40 AM) (24 of 33) [CSA-113/2010] as well as the first Appellate Court, deciding the issue No.5 may not be held as erroneous or faulty in any manner. An attempt by counsel for appellants, to vindicate impugned judgments is not liable to be appreciated and both judgments are sustainable in the eye of law. The manner in which both Courts below have recorded fact findings while dealing with the issue No.5 relating to the ground of eviction of non-user, it cannot be held that Courts below acted illegally, arbitrarily and perversely rather on the other hand, the decree for eviction and findings of Courts below passed while deciding the issue No.5 deserves to be affirmed and are sustainable. Accordingly, substantial questions of law No.1 to 3 are answered against appellants.
42. Counsel for appellants have placed reliance on judgments passed in case of Gauri Lal (supra) and Pooran Mal (supra). In both judgments, the Single Bench of this Court has observed that ingredients as indicated in provisions of Section 13(1)(j) of the Act of 1950 are required to be proved essentially. The emphasis has been given that non-user of the rented premise should be proved "immediately preceding the date of suit".
43. There is no disagreement to the proposition of law set forth in these judgments. Both Courts have concurrently held that all ingredients as required to be proved under Section 13(1) (j) are established in the present case. The period of six months has been taken, prior to the institution of amended plaint i.e. from January, 1994 to June, 1994. It has been concurrently observed by both Courts that during this period the rented shop remained closed and defendants have not been able to prove that any business was carried on during this period. Plaintiff produced himself as witness and also produced the, Assistant Engineer of the (Downloaded on 25/12/2022 at 08:00:40 AM) (25 of 33) [CSA-113/2010] Electricity Department as Pw.2, who deposed his evidence on the strength of meter reading register. As per the electricity meter installed in the rented shop, the meter reading was noted on 9.4.1993 of 160 units and thereafter on 12.4.1996, 370 units. In between this period, no meter reading was noted as the shop was found locked. Counsel for appellants sought to impeach evidence of Pw.2, for the reason that in meter reading register, shop in question has been shown in the name of Agarwal Boot House but no such factual dispute was raised in cross-examination of Pw.2. Defendants have produced bills and vouchers from Ex.1 to Ex.236. These are bill through which defendants purchased some articles in the name of N.K. Handloom. These bills do not pertain to the period from January, 1994 to June, 1994. Few bills are of preceding period and few are of post period. Defendants themselves admit in evidence that business of shoe selling which was earlier carrying on, was closed and the shop was being used occasionally for selling the crackers and other occasional business of Indian festivals. Defendants also admit that for selling crackers in the rented shop, licenses were issued by authorities time to time. Defendants have neither produced any license nor have produced any electricity consumption bill of that period. Further bills and vouchers for purchasing some articles, in the name of N.K. Handloom is not the proof of doing business in the shop. Therefore, on the basis of material on record, both Courts have drawn an adverse inference against defendants that shop was laying closed continuously for a period of six months prior to filing of the amended plaint on 8.7.1994. Such fact findings are based on appreciation/ re-appreciation of evidence and cannot be said to be passed having no material on record or suffer from perversity. (Downloaded on 25/12/2022 at 08:00:40 AM)
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44. Counsel for appellants have argued that plaintiff has not pleaded that shop was closed since last six months continuously "without any reasonable cause". In counter to the argument, counsel for respondents submits that appellants in their written statement have contended that shop was never remained closed and was being used for carrying out business. It is not a case, where defendants have pleaded that shop remained closed for continuous period of six months due to some cause. He pointed out that in such backdrop of pleadings of defendants, point of "without reasonable cause", is an implied and an intrinsic part of pleadings and stands proved, as not controverted.
45. Respondents have relied upon the judgment of Sewa Ram Vs. Manoj Kumar [(1994) 1 WLC 45]. In this judgment, it was held that essential requirement of pleadings of landlord seeking eviction on the ground of Section 13(1) (j) of the Act of 1950 are that defendants are not using the suit premise for continuous period of six months immediately preceding the date of suit or to say non-user by tenant for the prescribed period, is sole of plaintiff's case. It is the part of defense permitted by the statute that notwithstanding such non-user, if defendants had a reasonable cause for non-user, tenant cannot be evicted.
46. Therefore, in the present case, where defendants have not taken any defense that due to some reasonable cause, rented premises was closed, the argument raised by counsel for appellants cannot be appreciated. Further Courts below have noticed that plaintiff has pleaded that no business is being carried out in the rented shop. Thus, the case of plaintiff is that shop is laying closed and defendants took a defense that shop is not closed, the ingredient of remained closed without reasonable (Downloaded on 25/12/2022 at 08:00:40 AM) (27 of 33) [CSA-113/2010] cause, does not arise at all in such backdrop of facts and two Courts below have not committed any perversity in passing the decree for eviction on the ground of non-user.
47. As far as shifting of burden is concerned concededly, the initial burden to prove the ground of non-user of rented premises lies upon plaintiff-landlord. Plaintiff by his own evidence as also by producing the evidence of Assistant Engineer, Om Prakash (Pw.2) has, prima facie, discharged his onus to show that shop is laying closed as neither any meter reading was noted during that period nor any other business activities were carried on. It is the onus which shifted upon defendants to prove that the shop was not closed and business was going on in the rented shop during that period.
48. The legal position with regard to burden of proof and onus which shifts upon defendants-tenants as far as ground of non-user is concerned, is well clear. In case of Ram Dass Vs. Davinder [(2004) 3 SCC 684], the Hon'ble Supreme Court observed that it is for the landlord to make out a ground for eviction and burden of proof lies upon landlord. However, the onus remains shifting. Once landlord has been able to show that tenanted premise were not being used for the purpose for which they were let out and tenant has discontinued such activities in the tenanted premise as would have required the tenant actually being in premises, the ground for eviction is made out. The availability of the reasonable cause for ceasing to occupy the premise, would obviously be within the knowledge and, at times, within the exclusive knowledge of tenant. Once premises have been shown by evidence to be not in occupation of tenant, pleadings of landlord that such non-user is without reasonable cause has the effect of (Downloaded on 25/12/2022 at 08:00:40 AM) (28 of 33) [CSA-113/2010] putting the tenant on notice to plead and prove the availability of reasonable cause for ceasing to occupy the tenanted premises.
49. In case of V.Sumatiben Maganlal Manani Vs. Uttamchand Kashiprasad Shah [(2011) 7 SCC 328], in para 22, the Supreme Court observed that "the most clinching evidence on the issue of non-user of the suit premises, however, comes in the form of the electricity bills." It was observed that if from the electricity bills, it appears that there was no consumption of electricity in the present case, defendants have adduced evidence that their father paid the electricity bill and they are in possession of the electricity bills but none of the electricity bill has been produced on record.
50. In case of Prem Prakash @ Puran Chand Vs. Rent Appellate Tribunal, Alwar [2015 (3) WLN 52], the Single Bench of this High Court observed that the best evidence for the tenant to put a defense on the ground of non-user could have been account books, bills of purchase and sale in order to prove that he was in use of tenanted premise.
51. In the present case, defendants have not produced bills to show that business was carrying on in the rented shop. Firstly, bills are not of the period from January, 1994 to June, 1994 and secondly, bills produced on record are bills in the name of N.K. Handloom to purchase some articles. These are not bills to show that any business was going on in the rented shop. Defendants have not produced any license, if business of selling crackers were commenced in the rented shop.
52. In a celebrated judgment of Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif [AIR (1968) SC 1413], the Supreme Court observed that if a party in possession of best evidence on (Downloaded on 25/12/2022 at 08:00:40 AM) (29 of 33) [CSA-113/2010] the issue in controversy, withholding it, would invite an adverse inference against him notwithstanding that onus of proof does not lie on him.
53. In such circumstances, it is only the onus which has been shifted upon defendants to prove that the rented shop was not laying closed and business was going on therein. In absence of evidence of defendants, Courts below have rights drawn an adverse inference against defendants more particularly where plaintiff and his witness-Assistant Engineer of Electricity Department have proved that shop was laying closed. Thus, the substantial question of law No.4 is answered in negative and against appellants.
54. Therefore, all substantial questions of law No.1 to 5 have been answered in negative and stand decided against appellants.
55. The Hon'ble Supreme Court in case of Umerkhan Vs. Bismillabi Shaikh & Ors. Reported in [(2011) 9 SCC 684] has observed that if a second appeal is admitted on substantial question of law, while hearing the second appeal finally, the court can re-frame the substantial question of law or can frame new substantial question of law or even can hold that the substantial question of law as already framed do not fall within the purview of substantial question of law but the High Court cannot exercise its jurisdiction under Section 100 CPC, without formation/involvement of substantial question of law.
56. Counsel for appellants have placed reliance on judgments passed by the Supreme Court in case of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC 641] and C. Doddanarayana Reddy Vs. C. Jayarama Reddy [(2020) 4 SCC 659]. He on the strength of these judgments has argued that re-appreciation of (Downloaded on 25/12/2022 at 08:00:40 AM) (30 of 33) [CSA-113/2010] evidence by the High Court in second appeal is not barred and in order to analyze the perversity in fact findings the High Court can re-appreciate the evidence even in the case of concurrent findings of fact, while exercising its jurisdiction under Section 100 CPC. There is no disagreement to the proposition of law as expounded by the Hon'ble Supreme Court. As far as present case is concerned, fact findings recorded by two Courts below have not been found perverse nor are based on mis-reading/ non-reading of evidence nor are based on without evidence, nor the impugned judgments are of such nature that no judge acting judicially could have reasonably reached, therefore, fact findings are not required to be interfered with.
57. The issue of non-user of rented shop is a factual issue and both Courts have recording fact findings that shop in question remained closed and was non used for continuous period of six months preceding to date of filing amended suit. The perversity in such concurrent fact finding of two Courts, may not be interfered on account of any inadequacy of evidence or by reading the evidence in different manner. The Hon'ble Supreme Court in case of Damodar Lal Vs. Sohan Devi & Ors. [(2016) 3 SCC 78] has observed as under:-
"Para 12.....Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity."
58. In Navaneethammal Vs. Arjuna Chetti [(1996) 6 SCC 166] the Apex Court held as under:-
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(31 of 33) [CSA-113/2010] "Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts.....Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view by the first appellate court was based on no material."
59. Similarly, in Thiagarajan Vs. Sri Venugopalaswami B. Koil [(2004) 5 SCC 762] the Apex Court held as under:-
"25. In the present case, the lower appellate fairly appreciated the evidence and arrived at a conclusion that the appellants' suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reapprecaition of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate Court was based on no material.
26. To say the lease the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible."
60. The Hon'ble Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722] has held as under:-
"It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the first Appellate Court. It is true that the lower Appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. (Downloaded on 25/12/2022 at 08:00:40 AM)
(32 of 33) [CSA-113/2010] one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arriaved at without evidence. "
61. In Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 SCC 179] the Apex Court held as under:-
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicios balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
62. In the judgment of C. Doddanarayana Reddy (supra) relied upon by counsel for appellants, the Hon'ble Supreme Court has placed reliance on the judgment in State of Rajasthan Vs. Shiv Dayal [(2019) 8 SCC 637] and it has been held as under:-
"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it (Downloaded on 25/12/2022 at 08:00:40 AM) (33 of 33) [CSA-113/2010] was recorded against any provision of law and lastly, the decision is one which no judge acting judicially could reasonably have reached."
63. Substantial questions of law as discussed hereinabove have been answered against appellants. No other substantial question of law have been suggested nor arise in the present case. This court is not inclined to interfere with concurrent findings of facts recorded by two courts below for passing the decree of eviction on the ground of non-user of the rented shop in question. Accordingly, the second appeal is devoid of merits and is hereby dismissed. There is no order as to costs.
64. Since the rented shop has been in tenancy of appellants- defendants since time of their forefathers from year 1948, therefore, considering the long period of tenancy, this Court deems it just and proper to grant three months time to appellants to vacate and handover the peaceful possession of the rented shop to the respondents-landlord subject to payment of arrears of rent/ mesne profit, if any and the future mesne profit till handing over the possession.
65. Any other pending application(s), if any, also stand(s) disposed of.
66. Record of both Courts below be sent back forthwith.
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