Rajasthan High Court - Jaipur
Bhawani Prasad vs Roshan on 21 June, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH
O R D E R
S.B. Civil Second Appeal No.359/2010
Bhawani Prasad Vs. Roshan
Date of Order : 21.06.2012
PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr. Ashok Sharma for the appellant.
Mr. J.P.Goyal Sr.Advocate with
Mr.Pawan Choudhary for the respondent.
REPORTABLE BY THE COURT:-
The defendant-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 31.07.2010 passed by the Additional District Judge No.2, Sikar in Civil Regular Appeal No.171/2008 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 16.05.2006 passed by the trial Court i.e. Civil Judge (Junior Division) No.2, Sikar in Civil Suit No.156/2003 whereby the suit for eviction filed by the plaintiff-respondent was decreed.
2. Brief relevant facts for the disposal of this appeal are that the respondent-landlord filed Civil Suit No.156/2003 in the trial Court against the tenant-appellant for eviction from the suit shop with the averment that the suit shop is bonafidely and reasonably required by him for the use and occupation of his son Shri Shakeel to do the business of general goods for which he has suffficient experience. The appellant filed written statement and denied the requirement shown by the respondent with the averment that the son of the respondent is presently residing in Saudi Arab and is earning a huge amount of money and, therefore, the requirement shown by the respondent for the suit shop is not bonafide and reasonable. It was also averred by the appellant that adjacent to the suit shop there is another shop of the respondent which was previously on rent with one Shri Gaffar Pathan but it was got vacated about 18 years ago and it is available to the respondent for his use and occupation. It was further averred that in case decree of eviction is passed the appellant will face more hardship in comparison to the respondent. On the basis of pleadings of the parties, necessary issues were framed and both the parties led evidence in support of their respective case. The learned trial Court after hearing both the parties came to a conclusion that the need shown by the respondent is bonafide and reasonable and if decree for eviction is not passed in comparison to the appellant the respondent will face more hardship. It was also held that both the parties agreed that decree for partial eviction is not possible. On the basis of evidence available on record the trial Court found that son of the respondent is temporarily residing in Saudi Arab and working as a labour there but that does not mean that the requirement shown for the suit shop has come to an end and it is not reasonable and bonafide. It was further held that the adjacent shop to the suit shop is being used by the respondent for his and his family members residence and for storing house hold goods and, therefore, it cannot be said that it is lying vacant and it can be used for the need shown by the respondent. Consequently upon the findings arrived at the suit filed by the respondent was decreed. Feeling aggrieved the appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide impugned judgment and decree dated 31.07.2010. On the basis of evidence available on record, the learned appellate Court concurred with the findings arrived at by the trial Court. Still dissatisfied the tenant-appellant is before this Court by way of this Civil Second Appeal.
3. Assailing the impugned judgment and decree passed by the Courts below the learned counsel for the appellant has raised the following grounds:-
(i) In the written statement filed by the appellant it was specifically averred that the son of the respondent Shri Shakeel for whose requirement the present suit for eviction has been filed is presently residing in Saudi Arab and by doing a job there he is earning a huge amount of money and it was further averred that a shop adjacent to the suit shop is lying vacant and is available to the respondent for the use and occupation of his son but even then no rejoinder was filed by the respondent denying the specific averments made by the appellant in the written statement and thus there being no pleading in the form of rejoinder or otherwise the respondent was not entitled to led evidence to controvert the averments made in the plaint but even then evidence was produced by the respondent and that evidence was not liable to be taken into consideration but both the Courts below wrongly considered that evidence and thus have committed illegality and perversity in this regard and the finding arrived at by the Courts below is liable to be set aside.
(ii) It was for the respondent to prove that he has no alternative accommodation to satisfy the need shown by him but no pleadings and evidence has been produced by the respondent to show that he has no alternative accommodation and, therefore, the fact that a shop adjacent to the suit shop is available to the respondent negatived the requirement shown by the respondent for the suit shop as that shop can be easily used for the business of the son of the respondent. The fact that inspite of availability of another shop to the respondent business was not started in it, is a clear indication of the fact that the need shown for the suit shop is not bonafide and reasonable.
(iii) It is an admitted fact that the son of respondent Shri Shakeel is presently residing in Saudi Arab and by doing a job there he is earning a lot of money and as a consequence of that the requirement shown for the suit shop has come to an end as there is no possibility that a person earning a lot of money in a foreign country will leave his job there and come back to his native place to start business in a shop having small measurement.
(iv) The finding of fact arrived at by the Courts below is illegal and perverse as it has been arrived at by non consideration of relevant evidence and by considering the evidence which was not admissible due to the reason that it was led without there being pleadings in regard of it and as a result of that the finding on the issue of bonafide and reasonable necessity shown by the respondent is erroneous and vitiated.
In support of his submissions, learned counsel for the appellant relied upon the cases of Raghunath G.Panhalre (dead) By L.Rs. Vs. M/s Chaganlal Sundarji & Co. reported in ACJ 1999 (2) 630, S.J.Ebenezer Vs. Velayudhan & Ors. reported in ACJ 1998 (1) 142, Prabha Arora & Anr. Vs. Brij Mohini Anand & Ors. reported in 2008(1) ACJ 555 (SC), The National Textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad & Ors. reported in 2011(3) ACJ 685 (SC),Abhyudya Santha Vs. Union of India & Ors. reported in 2011(3) ACJ 476 (SC), Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board & Ors. reported in 2011 (1) ACJ 56 (SC), Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi reported in 2011 (3) ACJ 255 (SC).
4. On the other hand learned counsel for the respondent by controverting the submissions made on behalf of the appellant submitted as below:-
(i) It was not legally required for the respondent to file rejoinder deyning the averments made by the appellant in the written statement regarding availability of alternative shop to the respondent to satisfy his requirement shown for the suit shop and doing of job by his son Shri Shakeel in a foreign country and earning a huge amount of money and in absence of pleadings by way of rejoinder or otherwise the respondent was entitled to explain the real position in this regard by leading evidence to controvert the averments made by the appellant in the written statement and, therefore, no illegality and perversity has been committed by the Courts below in considering the evidence produced by the respondent to controvert the averments made by the appellant in the written statement. Both the Courts below have rightly considered the evidence available on record and have concurrently found that the shop adjacent to the suit shop is being used by the respondent for his residence and storing house hold goods and that finding cannot be interfered in this second appeal.
(ii) There is un-controverted evidence available on record indicating that there are ten members in the family of respondent and number of rooms in the house is only four and one of the rooms is being used as a kitchen and remaining three rooms are occupied by three sons of the respondent and in this situation it is not unnatural that respondent is using the another shop for his and his grand childrens' use and occupation. Thus, it cannot be said that the adjacent shop is vacant and is readily available to the respondent to satisfy the need shown for the suit shop.
(iii) Two sons of respondent including Shri Shakeel for whose requirement the present suit has been filed are only temporarily residing in Saudi Arab and are doing a job there as a labour but only by that reason it cannot be said that the need shown for the suit shop has come to an end. Subsequent event happening after institution of a suit for eviction on the ground of bonafide and reasonable necessity can be considered only when it is found by the Court that the need shown for the tenanted premises has permanently come to an end but in the present case no such case has been pleaded even by the appellant himself.
(iv) On the basis of pleadings and evidence available on record the Courts below have concurrently found that the requirement shown by the respondent for the suit shop is bonafide and reasonable and there is no scope in the present case to intefere in this find of fact arrived at by the Courts below.
In support of his submissions learned counsel for the respondent relied upon the cases of Gaya Prasad Vs. Pradeep Shrivastava reported in AIR 2001 (SC) 803 and Dinesh Kumar Vs. Yusuf Ali reported in (2010) 12 SCC 740.
5. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law relied upon by the parties.
6. The well established facts as emerging from the pleadings and evidence available on record and relevant for the disposal of this appeal are that there are ten members in the family of the respondent including three married sons namely Shri Ashfaq, Shakeel and Shri Ahsan and the respondent is doing business of general merchandise in a rented shop obtained from the Municipal Council Sikar and one of his sons Shri Ashfaq is assisting him in his business whereas two of his sons Shri Shakeel and Ahsan after the institution of the present suit went to Saudi Arab and they are temporarily doing some job as a labour there. It is also well settled fact based on the evidence available on record that the shop adjacent to the suit shop is being used by the respondent for his and his grand childrens' residence and storage of house-hold goods as there are only four rooms in the house of the respondent and out of which one room is being used as a kitchen whereas remaining rooms are in the occupation and use of three sons of the respondent. It is also a fact that the other shop was got vacated by the respondent about 18 years before the present suit was instituted and since then it is being used as residence. These concurrent findings of fact arrived at by the Courts below cannot be said to be illegal and perverse as it cannot be said that these findings are arrived at by non-consideration of evidence available on record or by misreading thereof. It is well settled that concurrent findings of fact cannot be interfered by the High Court in second appeal filed under Section 100 CPC. So far as this contention of the learned counsel for the appellant that in absence of pleadings in the form of rejoinder or otherwise evidence led by the respondent to controvert the averments made by the appellant in the written statement in regard to availability of adjacent shop to satisfy the need shown by the respondent and doping of some job by his son Shri Shakeel in Saudi Arab could not have been considered by the Courts below is concerned, I am of the view that there is no legal requirement that the plaintiff is bound to file rejoinder or any other further pleadings to controvert the averments made by the defendant in his written statement and in absence of that no evidence can be led by the respondent to deny or controvert the averment made by the defendant in the written statement and even if such evidence has been led by the plaintiff it cannot be legally considered. I am of the considered view that no illegality and perversity has been committed by the Courts below in considering the evidence led by the respondent in support of his contention that the adjacent shop is being used for his and his grand childrens' residence and his son Shri Shakeel has went to a foreign country Saudi Arab only temporarily so that he can earn for his livelihood and to support his family. From the evidence available on record both the Courts below have concurrently held that as the adjacent shop of the respondent is being used for residence it cannot be said that it is vacant and is readily available to the respondent to satisfy his requirement shown for the suit shop. This concurrent finding cannot be interefered in this second appeal. The Courts below from the evidence available on record have further held that as the son of the respondent is temporarily residing and earning in Saudi Arab the requirement shown for the suit shop cannot be said to be permanently come to an end. The relevant legal position is that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Neither the tenant nor Court can advise the landlord how he should adjust himself and satisfy his requirement in some other way. In the present case, the appellant is not entitled to say that as the son of respondent Shri Shakeel is presently earning his livelihood by doing some job as a labour in a foreign country, there is no need for him to come back to India and start business in the suit shop and he should continue to reside in Saudi Arab and to do his job as labour there. If the son of respondent to support him and his family members has temporarily gone to a foreign country, it cannot be said that the need shown for the suit shop has permanently come to an end. In this regard the well settled legal position is that the crucial date for deciding bonafides of the need shown by the landlord is the date of the suit/petition and it must also continue throughout the progress of the litigation and must exist on the date of decree of the final Court but at the same time if during the course of litigation subsequent developments and events happens that circumstance or development may be taken note of to adjudge the bona fide or reasonability of the need shown by the landlord. Such subsequent developments and events are to be taken note of only when the need of the landlord can be shown to be completely eclipsed by such subsequent events. 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 landlord should have been completely vanished by such subsequent events. Temporarily doing of some job by the person for whose requirement the suit has been filed for his and his family members livelihood here and there cannot be said to be such subsequent event resulting in complete eclipse of the need shown for the tenant premises by the landlord.
7. The net result of the above discussion is that I do not find any illegality or perversity in the judgment and decree passe by the Courts below. I also do not find any substantial question of law involved in this second appeal requiring some more elaborate consideration by this Court. Each and every substantial question of law as framed by the appellant in the memo of appeal and each and every ground raised on behalf of the appellant during the course of hearing on the point of admission of this appeal is clearly covered by well settled legal position already referred. I do not find any ground to admit the present appeal for further hearing.
Consequently, the appeal being meritless is, hereby, dismissed with costs throughout at the admission stage itself. The stay application also stands dismissed. Two months time is granted to the appellant to vacate the suit shop and hand over the peaceful possession of the same to the respondent.
(PRASHANT KUMAR AGARWAL), J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary