Rajasthan High Court - Jaipur
8/S Murli Manohar Textiles And O vs Mangal Chand on 23 May, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 411/2000
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----Appellant
Versus
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----Respondent
For Appellant(s) : Mr. Vimal Choudhary
For Respondent(s) : Mr. Akash Agarwal
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
23/05/2022
1. Appellant-defendant-tenant (hereinafter referred as 'tenant') has preferred this second appeal under Section 100 CPC assailing the judgment and decree dated 06.09.2000 passed in Civil first appeal No.46/1998 by the Court of Additional District and Sessions Judge, Kishangarh, Ajmer, affirming the judgment and decree for rent and eviction dated 17.04.1998 passed in Civil Suit No.72/1997 by the Court of Additional Civil Judge and Judicial Magistrate, Kishangarh, Ajmer.
2. On perusal of record, it transpires that the rented premise is a shop situated at Sarvahi Darwaja, Kishangarh, Ajmer which was in tenancy of tenant at the rate of Rs.35/- per month. On 19.11.1993, respondent-landlord instituted civil suit for eviction (Downloaded on 24/12/2022 at 10:27:58 PM) (2 of 6) [CSA-411/2000]5 on the ground of default, bonafide and reasonable necessity under Section 13 of the Rajasthan Premise (Control of rent and Eviction) Act, 1950 (hereinafter referred to as "the Act of 1950").
3. The tenant has admitted his tenancy, however, disputed the ground of eviction and contested the eviction suit.
4. The trial Court, after recording evidence of both parties vide judgment and decree dated 17.04.1998, decreed eviction suit on the ground of bonafide and personal necessity. Though, the tenant was held defaulter in payment of rent, however, beneficial of first default was extended.
5. The tenant by way of filing first appeal, assailed the eviction decree passed on the ground of bonafide and personal necessity. The first Appellate Court affirmed the necessity of rented shop for plaintiff's son, to start business of motor parts in the rented shop and necessity was found as bonafide and reasonable. Accordingly, the first appeal was dismissed on merits vide judgment dated 06.09.2000.
6. Against concurrent finding of fact on the ground of bonafide and reasonable necessity, this second appeal has been filed.
7. This Court vide order dated 06.11.2000 admitted the appeal on following substantial questions of law:-
(1) Whether the first appellate Court could have disposed of the appeal without discussing and appreciating the evidence on record perfunctorily by only posing questions and recording the answers to the questions?
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(3 of 6) [CSA-411/2000]5 (2) Whether the findings of the first appellate Court are vitiated because of the Cavalier approach adopted by it in disposal of the appeal?
8. Heard counsel for both parties, perused the impugned judgments and record.
9. It is no more res-integra that the issue of bonafide, reasonable necessity is a question of fact which requires appreciation of evidence and unless and until the fact findings of the trial Court and/ or first Appellate Court, on the issue of bonafide necessity, suffer from perversity or grave illegality so as to lead miscarriage of justice, did not give rise to any substantial question of law.
10. The proposition of law has been settled by the Supreme Court in the case of Ram Prasad Rajak vs. Nand Kumar & Bros. And Anr. reported in (1998) 6 SCC 748 and H.K. Sharma Vs. Ram Lal reported in (2019) 4 SCC 153 and further confirmed in other umpteen number of judgments.
11. On examination of pleadings, evidence and material on record of the present case at hand, it transpires that landlord instituted an eviction suit alleging the necessity of rented shop for his son to start business of motor parts.
12. The issue was examined by the Trial Court as well as Appellate Court. The plaintiff got recorded his own statement as well as statement of PW-2 Hanuman Prasad. In counter, defendant produced himself as DW.
13. On appreciation of evidence, plaintiff's necessity has been held to be bonafide and reasonable in favour of landlord. (Downloaded on 24/12/2022 at 10:27:58 PM)
(4 of 6) [CSA-411/2000]5
14. The issue of partial eviction and comparative hardship were also considered and decided in favour of the landlord.
15. The issue of default was also decided in favour of landlord, however, since tenant deposited due rent and monthly rent regularly in compliance of order dated 13.08.1996, the benefit of first default under Section 13 (6) of the Act of 1950 was extended. The Trial Court passed the decree for eviction on the ground of bonafide necessity. The first Appellate Court, on re-appreciation of evidence has concurred with the fact finding of the Trial Court and find no infirmity, illegality in the judgment of the Trial Court, accordingly dismissed the first appeal vide judgment dated 06.09.2000.
16. The first Appellate Court in its judgment dated 06.09.2000 had observed that the rented shop is required to plaintiff's son for his business and plaintiff has no alternate in sufficient premises although defendant-tenant has acquired alternative premise for his business.
17. The first Appellate Court also considered the issue of comparative hardship and held the same in favour of landlord. The rented shop is one shop, for which issue of partial eviction was considered and the partial eviction was not found suitable. Thus, it transpires that the first Appellate Court has discussed the evidence in detail, and all relevant issues, which concurring with the fact findings of the trial Court.
18. In the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs reported in (2001) 3 SCC 179 has held that the first Appellate Court while affirming the fact findings of the Trial Court, is required to re-appreciate the evidence having (Downloaded on 24/12/2022 at 10:27:58 PM) (5 of 6) [CSA-411/2000]5 considered the fact finding of the trial Court, but in case of reversing findings, the Appellate Court has to assign reasons to defer with the fact findings of trial Court.
19. In the present case, the Appellate Court has concurred with the fact findings of trial Court, hence, an elaborate discussion is not required. When the first Appellate Court on conspectus reading of the evidence concurred with the fact finding of the trial Court, same do not suffer from any infirmity or illegality.
20. In the light of aforesaid discussion, substantial questions of law as framed on 06.11.2000 deserve to be answered in negative.
21. 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.
22. For the discussion made herein above, considering the concurrent fact findings in the issue of bonafide and reasonable necessity as well as old tenancy of the appellant-tenant, this Court do not find any merit in this appeal. The substantial question of law already framed has been considered and answered in negative. No other substantial question of law is found involved in the second appeal, hence the same is dismissed. (Downloaded on 24/12/2022 at 10:27:58 PM)
(6 of 6) [CSA-411/2000]5
23. However, considering the old tenancy of the appellant- tenant, three months time is granted to the appellant to vacate and handover the rented premises, if has not already been vacated, subject to payment of due arrears of rent/ rent as mesne profit.
24. There is no order as to costs.
25. All pending application(s), if any, stand (s) disposed of.
26. Record of both courts be sent back.
(SUDESH BANSAL),J Simple Kumawat /87 (Downloaded on 24/12/2022 at 10:27:58 PM) Powered by TCPDF (www.tcpdf.org)