Rajasthan High Court - Jaipur
Girdhari Lal vs Smt. Kanta And Ors. on 28 June, 1999
Equivalent citations: 1999(3)WLC367, 1999(1)WLN577
JUDGMENT Shiv Kumar Sharma, J.
1. The defendant-appellant seeks to challenge the judgment and decree dated 23.11.1998 of learned Additional District Judge No. 1, Sikar whereby the Civil Regular First Appeal preferred by defendant-appellant was dismissed and the judgment and decree dated 10.10.1994 of learned Additional Civil Judge (Lower Division) No. 1, Sikar passed in a suit for eviction was confirmed.
2. The parties shall be referred hereinafter in the manner as they were arrayed in the suit.
3. The brief resume of the case is that the plaintiff instituted a suit for ejectment in respect of the tenanted shop fully described in para No. 1 of the plaint on the ground of default in making payment of rent, subletting, reasonable and boanfide necessity and material alteration. The defendant in the written statement denied the allegations. On the basis of the pleadings of parties as many as nine issues were framed. The plaintiff examined 9 witnesses, whereas six witnesses were examined by the defendant. Learned trial court vide its judgment and decree dated 10.10.1994 decided the issues No. 3 and 4 in favour of plaintiff and decreed the suit on the ground of reasonable and bonafide necessity holding that the plaintiff shall suffer comparative hardship if the decree in respect of tenanted shop is not passed. In so far as the other grounds for eviction are concerned the issues were decided against the plaintiff. The counter claim of defendant raised in written statement was also dismissed. The defendant preferred the civil regular first appeal. But it was dismissed by the learned Appellant Court as indicated hereinabove. The defendant has now preferred the instant second appeal.
4. Mr. B.L. Agrawal, learned Counsel appearing for the defendant canvassed that the courts below have made out a new case while deciding the issue of reasonable and bona fide necessity. In para No. 14 of the plaint this fact was not pleaded that the tenanted shop was needed for installation of counter of hotel. It was also not averred that western shop adjacent to the disputed shop has got less accommodation on account of construction of stairs. In another suit the western shop was got vacated. But the pleadings of that suit was not properly considered by the courts below. It was also contended that the provisions of Section 14(2) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short Rent Act') in respect of partial eviction were not properly considered. In respect of alternative accommodation, I was taken through the various material. It was also argued that the application moved under Order 13 Rule 2 CPC was wrongly rejected by the trial court vide order dated 29.7.1974. The objection was taken in civil regular first appeal, but it was not properly considered. The finding of issue No. 8 in respect of rent was also assailed. The reliance was placed on the judgment in case of Rahman Jeo Wangnoo v. Ram Chand and Ors. and Riyaz Mohammed v. Rameshwar 1989(1) RLW 95.
5. On the other hand Mr. R.K. Agrawal, learned Counsel appearing for plaintiff supported the judgments of the courts below and canvassed that concurrent finding of fact cannot be interfered with in second appeal. The reliance was placed on judgments in case of Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor Kondiba Dagadu Kadam v. Savitribai Sopal Gujar and Ors. yidhyadhar v. Mankikrao and Anr. JT 1999 (2) SC l83; Nawneethammal v. Arjuna Chetty AIR 1996 SC 3521; Raj Kumar Khaitan and Ors. v. Bibi Zubaida Khatun and Anr. AIR 1995 SC 576; Mrs. Meenal Eknath Kshirsagar v. Traders & Agencies and Anr. ; Raj Kumar and Anr. v. Mehar Chand 1990 (2) RLR 731; and Prem Tent House v. Prakash Chand Jain, 1983 RLR 438.
6. I have pondered over the rival submissions and carefully scanned the material on record. In Dnyanoba Bhaurao Shemade (supra) their lordships of Supreme Court have propounded that concurrent finding of fact based on record cannot be interfered with by the High Court in second appeal. Therefore, the concurrent finding of the courts below in respect of reasonable and bona fide necessity and comparative hardship which require reconsideration of facts needs no interference. Both the courts below have properly appreciated the evidence and decided the issue in respect of reasonable and bona fide necessity and comparative hardship in favour of the plaintiff. I am unable to persuade myself to agree with the submissions advanced before me by learned Counsel for the defendant.
7. Section 14(2) of the Rent Act mandates the court to consider whether the eviction of tenant from part of premises is to be ordered so as to substantially satisfy reasonable requirement of landlord. Undoubtedly, even in the absence of specific pleading, the court has to act in compliance of the mandate and give a finding. This is what their lordships of Supreme Court have propounded in the case of Rahmand Jeo Wangnoo(supra).
8. In the instant case the plaintiff instituted the suit in respect of one shop and it was required for the purpose of running hotel along with other rooms. The requirement was properly considered on the basis of pleadings of parties by both the courts below. A careful perusal of the material on record reveals that entire shop is reasonably and bonafide needed by the plaintiff for the purpose of ingress and installation of the counter. It is well settled law that the landlord is the best judge of his requirement and if landlord desires to benifeically enjoy his own property, his requirement cannot be termed as unreasonable. In view of the requirement of plaintiff as indicated herein above, I am of the view that non giving of any finding by the courts below, on the question of partial eviction, does not affect the root of the matter as in the facts and circumstances of the case the partial eviction is not possible. Both the courts below undoubtedly have not examined the mandate of Section 14(2) of the Rent Act, but I have closely scrutinized the material on record in view of the mandate of Section 14(2) of the Rent Act and in my considered opinion the partial eviction of tenant is not possible in the facts of this case. In case of Raj Kumar and Anr. (supra) this court had occasion to examine the Section 14(2) of the Rent Act in the similar circumstances and it was held that where the things are so apparent that partial eviction is not possible, non giving of any finding by the courts below does not affect the decision.
9. I am satisfied that no substantial question of law arises in the instant second appeal. I do not see any infirmity in the concurrent finding of the fact arrived at by both the courts below. The appeal fails and is accordingly dismissed. Cost easy.
10. Still to save the defendant from the peril of sudden ejectment he has to be granted a breathing time. It is directed that the decree for ejectment shall not be available for execution until December 31, 1999 subject to the defendant filing undertaking on affidavits before the Executing Court to the effect that on or before December 31, 1999 he shall hand over peaceful vacant possession to the plaintiffs and in between shall not induct anyone else in the premises nor part with also be obliged to deposit the amount of use and occupation charges if any and upto date, regularly with the Executing Court. He shall continue to pay to the landlord or deposit with the Executing Court rent falling due month by month by the 15th day of that month. Failing the filing of the undertaking or in the event of breach of any of the conditions aforesaid, the decree of ejectment shall be available for execution forthwith.