Rajasthan High Court - Jodhpur
Gopal Krishna & Ors vs Kishan Lal & Anr on 25 September, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
S.B.CIVIL SECOND APPEAL NO. 197/2009
Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012
1 / 87
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
Gopal Krishna & ors. vs. Kishan lal & Anr.
S.B.CIVIL SECOND APPEAL NO. 197/2009
DATE OF JUDGMENT : 25th September, 2012
PRESENT
HON'BLEL DR.JUSTICE VINEET KOTHARI
REPORTABLE
Mr. M.C.Bhoot, Sr. Advocate along with
Mr. Arpit Bhoot &
Ms.Mehak Chopra, for the appellant-defendant-tenants.
Mr. Ravi Bhansali and
Mr.Dhanesh Saraswat, for the respondent-plaintiff-landlord
BY THE COURT:
PROLOGUE
1. The present second appeal filed by tenant Gopal Krishna s/o late Shri Govind Ram & other legal representatives of original tenant
- Goving Ram has been filed against the plaintiff landlord Kishan Lal S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 2 / 87 s/o of Shri Ram Niwas Samdani on 20/7/2009 under Section 100 CPC aggrieved by the judgment and eviction decree of the first appellate court of learned Addl. District Judge No.2, Bhilwara in Civil Appeal No. 12/2005 allowing landlord Kishan Lal's appeal against the judgment & decree of learned trial court in civil suit No. 45/78 (Kishan Lal vs. Govind Ram) on 12/3/1993 dismissing the eviction suit in respect of a shop situated at Bhopalganj, Bhilwara inter alia on the ground of bonafide and reasonable necessity of the landlord Ram Niwas Samdani and his son - present respondent - landlord - Kishan Lal.
2. The long channel of litigation in rent control and eviction matters is truly reflected in the present case where the eviction suit filed way back on 12/1/1978, 34 years back, has now landed before this Court, possibly meeting its final fate at the admission stage of the present second appeal, which too after three years of its finally passing through the hurdles of interim applications, with insistence of the Court to let the matter be first argued for admission, has been heard for approximately five hours at admission stage and is being disposed of by this order. Such is the art and aura of the counsels, S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 3 / 87 who have appeared throughout the trial of the present eviction suit, the lengthy litigation channels, creepy & lethargic system and hiccups of interlocutory applications and their disposals taking its own toll of lengthening the arrival time of fruits of litigation for the landlord, who sought eviction for his own personal and bonafide need to set up his own cloth business in the present suit shop.
3. One is reminded of the observations of Hon'ble Apex Court in the case of Gaya Prasad vs.Pradeep Srivastava - (2001) 2 SCC 604, wherein, the Supreme Court lamented over the excessively long time period taken in such matters and expressing its anguish observed that many many events are bound to take place for landlord or for his family members during the pendency of such litigation and thereby such events cannot be held to obliterate his bonafide need and, therefore, the crucial date for deciding the bonafide need shall be the date of filing of the suit & the Apex Court upheld the eviction decree.
The relevant para 10 of the said judgment is quoted below for ready reference:
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 4 / 87 "10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 5 / 87 litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious,and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period."
4. Recently, the Hon'ble Supreme Court in a very detailed and researching judgment in the case of Maria Margardia Sequeira Fernandes & ors. Vs. Erasmo Jack De Sequeria - (2012) 5 SCC 370 detailing the four types of possession under property law; Easements Act, 1882, Transfer of Property Act, 1882 and Specific Relief Act, 1963, dealing with a case of a well known and respected Christian family of Goa where the permissive & free of cost possession of suit premises was given by a sister to her brother as a caretaker, while the sister with her husband was out of Goa in relation to his service in Navy and which brother illegally denied her S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 6 / 87 possession of her own house with title undisputed for 20 longs years. The Hon'ble Supreme Court allowing the sister's appeal with costs of Rs.50,000/- and mesne profits of Rs.1 lac per month for the residential house, held in para 32 to 36 as under:-
"Truth as guiding star in judicial process
32. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.
33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.
34. In Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271, this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 7 / 87 a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions - whether discretionary or obligatory- according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.
35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.
36. In Ritesh Tewari and Another v. State of U.P. and Others (2010) 10 SCC 677 this Court reproduced often quoted quotation which reads as under:
".....Every trial is voyage of discovery in which truth is the quest"
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 8 / 87 ..........The quest of truth continues........, also in this case.
5. Deprecating false claims and defences, which are considered really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate, the Hon'ble Supreme Court in the aforesaid judgment in para 81 and 82 observed as under:-
"False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in the Courts. The Supreme Court in Ramrameshwari Devi case, (2011) 8 SCC 249 aptly observed that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 9 / 87 litigation. This problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. Imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate case would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings."
6. And then finally, allowing the sister's appeal as aforesaid and laying down the principles of law in para 97 to 101, the Hon'ble Supreme Court held as under:-
"97. Principles of law which emerge in this case are crystallized as under:-
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously.
Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 10 / 87 acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.
98. In this view of the matter, the impugned judgment of the High Court as also of the Trial Court deserve to be set aside and we accordingly do so. Consequently, this Court directs that the possession of the suit premises be handed over to the appellant, who is admittedly the owner of the suit property.
99. In the peculiar facts and circumstances of this case, the legal representatives of the respondent S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 11 / 87 are granted three months time to vacate the suit premises. They are further directed that after the expiry of the three months period, the vacant and peaceful possession of the suit property be handed over to the appellant. The usual undertaking to this effect be filed by the legal representatives of the respondent in this Court within two weeks.
100. The legal representatives of the respondent are also directed to pay Rs.1,00,000/- (Rupees one Lakh) per month towards the use and occupation of the premises for a period of three months. The said amount for use and occupation be given to the appellant on or before the 10th of every month. In case the legal representatives of the respondent are not willing to pay the amount for use and occupation as directed by this Court, they must hand over the possession of the premises within two weeks from the date of this judgment. Thereafter, if the legal representatives of the respondent do not hand over peaceful possession of the suit property, in that event, the appellant would be at liberty to get the possession of the premises by taking police help.
101. As a result, the appeal of the appellant is allowed. In the facts and circumstances of the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 12 / 87 case, the respondents are directed to pay a cost of Rs.50,000/- to the appellant within four weeks. (We have imposed the moderate cost in view of the fact that the original respondent has expired). Ordered accordingly." FACTUAL MATRIX
7. In this backdrop, the facts of the present case unfold like this. The landlord - Ram Niwas Samdani, having six sons and having a property at Bhopalganj, Bhilwara viz. 10 shops in a building, let out one shop in question on Miti Jeth Sudi 1 Samvat Year 2027 (equivalent to English Calender year 1970) for 11 months at Rs. 91/- per month, filed the present suit No. 45/78 on 12/1/1978 on the ground of default in payment of rent and bonafide & reasonable necessity of suit shop for setting up of his own cloth business. Issues were framed by the learned trial court on 21/7/1979 and after amendment of the plaint in 1985, claiming such reasonable & bonafide necessity for his son, the plaintiff - landlord - Kishan Lal, who was born in 1962 and was minor at the time of filing of the suit S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 13 / 87 in 1978 and who by 1985 became major and having failed in his 10th class examination the father landlord - Ram Niwas wanted to settle him in business, sought eviction of the suit shop on the ground of bonafide and reasonable necessity for his son - Kishan Lal, the present plaintiff and thus additional issues were framed in the trial on 6/10/1987. The plaintiff - Ram Niwas Samdani - P.W.1 in his statements recorded by the learned trial court twice over, one prior to amendment in 1985 on 29/7/1980 and again on 30/5/1989 after amendment in the plaint, which have been perused by this Court at length also, he stated that for settling his six sons properly, he had effected partition of the family property in the year 1969 itself and though this plea about partition was taken in the trial court, the registered partition deed dated 7/8/1969 was produced before the learned first appellate court and according to the same only two out of ten shops came to the share of present plaintiff - Kishan LaL and out of these two shops, in one shop `Kirana' business in the name of `Samdani Kirana Bhandar' was already being run by his other brother Satya Narain and himself and the second shop was the present suit shop in possession of the tenant and since the plaintiff Kishan Lal did not have any other shop in his ownership or possession, he bonafidely S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 14 / 87 needed the suit shop for starting his cloth business for selling suiting and shirtings and it has also come in evidence before the Court that the defendant tenant - Govind Ram s/o Kalu Ram Gharadiya, whose legal representatives - present appellants have filed the present second appeal in this Court, also had six sons and the defendant tenant was carrying on the business of selling `Gaund' (Gum or Glue) in the suit shop and that defendant has its own property in which he could shift his business of `Gaund' and in view of more comparative hardship to the landlord, the eviction decree deserves to be granted. Same thing was reiterated by plaintiff Kishan Lal himself, who was examined by the trial court as P.W.2 in his statements recorded on 12/12/1988, which also have been read over by this Court.
8. The defendant-tenant, of course, denied such bonafide need of the landlord and submitted that alternative shop was available to the landlord for satisfying the need of Kishan Lal and during the course of trial and even before the learned first appellate court, it is stated that out of ten such shops owned by the landlord family, two more shops had become available, but the same were either given to other brother for setting up their own business and one cloth shop S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 15 / 87 started by the landlord family known as `Ankur Cloth Store', which was also closed after two years of its operation, the plaintiff Kishan Lal could have been allowed to do his business in such shop but the landlord rebutted the same by submitting that in the partition effected in the family by registered partition deed dated 7/8/1969 (Ex.1) such other shops were in the share of other brothers of plaintiff-Kishan Lal and, therefore, the bonafide need of the plaintiff Kishan Lal could not have been satisfied with such alternative accommodation alleged to have become available to father of the plaintiff Kishan Lal, Shri Ram Niwas Samdani. The defendant tenant's plea and contention throughout has been that even though such partition deed was executed in the landlord's family on 7/8/1969, the character of the family remained joint even thereafter and, therefore, upon three shops out of ten belonging to landlord's family, becoming available, the need of the present-respondent-plaintiff-Kishan Lal, who is at serial no. 5 out of six sons, could have been very well satisfied and it is not necessary to evict the defendant tenant.
9. While the learned trial court accepted this contention of the defendant-tenant and dismissed the suit of the landlord as having S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 16 / 87 been filed with `oblique motive' and there was no bonafide necessity of the suit shop for the plaintiff-Kishan Lal, the learned first appellate court reversed these findings of learned trial court and held that the partition of Joint Hindu Family comprising of ten shops could not be disputed by the tenant and need of the plaintiff - Kishan Lal could not be said to be satisfied with other three shops becoming available, which admittedly fell in the share of other brothers of Kishan Lal and other sons of landlord Ram Niwas Samdani and consequently, the suit shop was liable to be evicted by the present defendant-tenant and accordinlgy, the eviction decree on the said bonafide necessity of the landlord was given by the learned first appellate court.
10. Aggrieved by this judgment & decree of appellate court, the defendant tenant has filed this second appeal before this Court. CONTENTIONS ON BEHALF OF DEFENDANT - TENANT
11. Vehemently arguing and relying upon plethora of case laws, learned cousnel for the appellant-defendant-tenant, Mr. M.C.Bhoot, Sr. Advocate urged that the plaintiff landlord came with a false case S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 17 / 87 before the learned trial court and truth should be the guiding star in litigation which is the foundation of justice and it does not mean that if the landlord has claimed such need, it is always bonafide and reasonable and it is for the Court to arrive at an objective satisfaction about the bonafideness and reasonableness of the need claimed by the landlord and in the present case, the landlord having available shops even at the time of filing suit or later on during the course of trial and appeal, failed to satisfy the need for his son Kishan Lal with such available shops and, therefore, the defendant-tenant could not be evicted from the suit shop, where he was carrying on the business of `Gaund' (Gum or Glue) for long number of years since 1970 and the learned first appellate court in a wholly perverse manner, without giving any cogent reason of 10 to 12 circumstances discussed by the learned trial court for holding that the eviction suit was not bonafide but was filed with oblique motive by the landlord, reversed such findings only on the theory of `landlord being the best judge of his need', whereas, three judges bench of Hon'ble Supreme Court in the case of M.M.Quasim vs. Manohar Lal Sharma & Ors. - (1981) 3 SCC 36 = AIR 1981 SC 1113, which judgment has never been overruled by any other subequent judgment, has held that mere claim S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 18 / 87 of bonafide need by the landlord cannot be a ground of eviction of tenant, unless the Court arrives at an objective satisfaction that such bonafide need is really genuine and reasonable and the landlord does not have any alternative accommodation in his possession to satisfy such claimed need. The learned counsel for the appellant-defendant- tenant, therefore, vehemently submitted that the substantial questions of law do arise in the present second appeal of tenant and it deserves to be admitted.
12. It may be stated here that at the time of issuing notice in the present second appeal of defendant-tenant on 27/7/2009, an interim order of status quo was granted by the coordinate bench, which continued through out the period of service of summons upon the respondent-landlord, which took as many as 1 ½ years and after filing of Vakalatnama by Mr. Ravi Bhansali on behalf of respondent- landlord on 2/9/2009, learned counsel for the respondent landlord filed an application namely; I.A. No. 333/2011 on 7/1/2011 when the matter could not be argued for admission, seeking vacation of the interim order, on which another coordinate bench of this court without disposing of said application on 14/1/2011 directed the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 19 / 87 matter to be listed for admission on 24/1/2011 and interim order was continued only till then. The matter somehow kept on adjourning on one pretext or the other and interim order was continued and when finally on 7/8/2012 it was directed that office may tag record of the courts below and list the matter on 14/8/2012, when the matter was set down for admission on 30/8/2012, two days prior to that i.e. on 28/8/2012, the defendant-tenant filed an application (I.A.No. 12148/2012) under Order 6 Rule 17 CPC, suprisingly seeking amendment in the written statement of defendant filed before the learned trial court on the ground that plaintiff Kishan Lal, according to the information of defendant-tenant had a bank account No. 1598313050 (CA) since 28/11/1989 in the name of business firm M/s Shreenath Tex Chem Engineers, as its sole proprietor with Central Bank of India and since the plaintiff-respondent - Kishan Lal was then doing his regular business, his bonafide need for the suit shop stands vanished and said amendment in written statement is required to be made for incorporating this fact in defence of the defendant- tenant. Though the said application was not even dealt with & placed before the Court for appropriate orders on 30/8/2012, on 30/8/2012, the detailed arguments were heard on the said application under S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 20 / 87 Order 6 Rule 17 CPC, obviously with only two days time given to respondent's counsel, without reply on behalf of the respondent plaintiff and said application was dismissed by this Court with costs of Rs. 5,000/- on 31/8/2012 and the matter was directed to be listed for admission on 4/9/2012, with a direction that no adjournment would be granted.
13. It is considered expedient to reproduce the order dated 31/8/2012 in extenso rejecting defendant tenant's application under Order 6 Rule 17 CPC, as that order dealt with the history of this litigation and the reasons why this application was liable to be dismissed with costs:-
"1. Heard learned counsels for the parties on application (IA No.12148/12) dated 28.08.2012 filed by the defendant-appellant-tenant under Order 6 Rule 17 read with Section 151 of CPC seeking amendment of the written statement now at this stage of second appeal against eviction decree against the tenant.
2. Mr. M.C. Bhoot, Senior Advocate with Mr. Arpit Bhoot, learned counsel for the appellant- defendant-tenant submitted that the learned lower appellate court below has decreed the eviction suit on S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 21 / 87 the ground of bonafide necessity of the landlord- respondent allowing plaintiff's appeal being Civil Appeal No.12/05 on 18.04.2009 reversing the findings of the learned trial court in the judgment and decree dated 12.03.1993, by which the learned trial court had dismissed the suit for eviction (Suit No.45/78- Kishan Lal Vs. Govind Ram). The suit was filed by the plaintiff- Kishan Lal for the bonafide need for setting up his own business in the suit shop situated at Bhopalganj, Bhilwara and also made averments in the plaint that the defendant-tenant has purchased a property in Bhopalganj, Bhilwara itself and, therefore, has an alternative accommodation available to him for shifting his business from the suit shop in question to that place.
3. The present eviction suit filed way-back on 12.07.1978, about 34 years back, has already a chequered history. A brief narration of which is like this. During the pendency of the suit before the learned trial court, the appellant-plaintiff filed an application under Order 6 Rule 17 CPC on 13.12.1984 seeking amendment in the plaint to the effect that the suit premises is required for his own personal and bonafide necessity as he has now become major. Initially in the year 1978, when the suit was filed, the plaintiff-landlord, Kishan Lal was minor and S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 22 / 87 now he wants to do his own business in the suit premises. The appellant-defendant-tenant also contested the said application, and ultimately the said application under Order 6 Rule 17 CPC was allowed by the learned trial court vide its order dated 25.09.1985. Thereafter, the suit was ultimately decreed only on 12.03.1993, however, the learned trial court did not accept the plea of bonafide necessity of landlord and also giving benefit of first default under Section 13 (6) of the Rent Control Act, 1950, the eviction decree was refused but only arrears of rent were directed to be paid.
4. Against the judgment and decree dated 12.03.1993, the respondent-plaintiff-landlord preferred first appeal before the learned lower appellate court. During the pendency of the first appeal, the appellant-defendant filed an application under Order 6 Rule 17 on 19.04.1995 seeking amendment in the written statement on the ground that after the eviction decree granted by the learned trial court vide eviction decree dated 12.03.1993, plaintiff- landlord had obtained vacant possession two more shops. The appellant-defendant-tenant, therefore, by way of said application dated 19.04.1995 sought addition in his written statement by inserting para 3-A and 3-B. The said application was contested by the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 23 / 87 plaintiff-landlord by filing reply thereof on 21.05.1996. The said application thereafter came to be rejected by the learned lower appellate court vide its order dated 24.07.2004. The plaintiff-landlord also filed yet another application under Order 6 Rule 17 CPC on 16.08.2004 seeking amendment in the plaint by inserting para "1-A" that the shops situated near the suit shop in question came into share of his other brothers and the plaintiff-landlord is not having any other shop in his ownership except the suit shop in question. The appellant-defendant-tenant filed reply to the said application on 17.08.2004 and prayed for dismissal of the same. Be that as it may, the said application filed by the plaintiff-landlord also came to be rejected by the learned lower appellate court vide its order dated 19.08.2004.
5. During the pendency of the first appeal before the learned lower appellate court, the appellant-defendant-tenant also preferred a writ petition before this Court being SBCWP No.1230/06- LR's of Govind Ram Bhardiya Vs. A.D.J. No.2, Bhilwara & Anr., assailing the order passed by learned appellate court below allowing plaintiff's application under Order 41 Rule 27. The said writ petition came to be dismissed by a coordinate bench of this Court vide order dated 19.01.2007 and record of S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 24 / 87 the court below was returned back. While passing the order dated 19.01.2007, the learned Single Judge of this Court also made it clear that the petitioner- defendant will be free to assail the correctness, legality or propriety of the impugned order by setting forth appropriate ground in the appeal, if any, filed by him.
6. The plaintiff-landlord's first appeal, ultimately came to be allowed by the learned lower appellate court on 18.04.2009 by the impugned judgment against which the present second appeal was filed by the defendant-tenant in this Court on 20.07.2009. An ad-interim stay order directing the parties to maintain status quo was granted by a coordinate bench of this Court on 27.07.2009, which has been extended from time to time and on an application filed by the respondent-plaintiff-landlord, namely, IA No.333/11, filed on 07.01.2011 seeking vacation of that stay order dated 27.07.2009 since for a long time, the matter was not even argued for admission, a coordinate benches of this Court on
14.01.2011 directed that the matter may be listed for admission on 24.01.2011 and the interim order shall continue till then. The said interlocutory application for vacation of stay was not disposed on that day. After 24.01.2011 also, the interim order was extended S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 25 / 87 from time to time by different coordinate bench while adjourning the matter and the second appeal has not been argued for admission so far, even after lapse of more than three years since its filing on 20.07.2009. The respondent-plaintiff's counsel Mr. Ravi Bhansali put in appearance by filing his "Vakalatnama" on 03.09.2009.
7. The present application (IA No.12148/12) under Order 6 Rule 17 r/w Section 151 CPC has been filed by the appellant-defendant seeking amendment in the written statement on 28.08.2012, two days back only, and though the same has not even been dealt with by the office and placed before the Court for appropriate orders, the learned counsel for the appellant-defendant, Mr. M.C. Bhoot, submitted that first the present amendment application deserves to be disposed of before the matter can be argued for admission.
8. Accordingly, lenghty arguments on the said amendment application (IA No.12148/12) of Mr. M.C. Bhoot, were heard for about one hour or so.
9. In the said amendment application, the defendant-appellant has submitted that the appellant No.1- Gopal Krishan son of the original tenant, Govind Ram Bhardia, has come to know on enquiry from the Central Bank of India, Petch Area, Bhilwara S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 26 / 87 for the first time on 24.08.2012 that Sh. Kishan Lal (plaintiff) is the sole proprietor of a firm M/s Shrinath Tex-Chem Engineers and it has a current account in the Central Bank of India being A/c No.1598313050 since 28.11.1989 and thus since the plaintiff-landlord is doing his regular business in his own premises since 28.11.1989, his so-called necessity for eviction stood completely eclipsed. He, therefore, submitted that suit for eviction deserves to be dismissed and this amendment to bring on record this fact in the written statement deserves to be permitted at this stage of second appeal.
10. Mr. M.C. Bhoot, relied upon following judgments in support of his contentions, which would be dealt-with hereafter:
1. Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. reported in (2006) 6 SCC 385.
2. M.C. Agrawal HUF Vs. M/s Sahara India & Ors. reported in 2008 (2) WLC (SC) Civil 459.
3. Bakshish Singh Vs. Prithi Pal Singh & Ors. reported in 1995 Supp. (3) SCC 577.
4. Hastmat Rai & Anr. Vs. Raghunath Prasad reported in (1981) 3 SCC 103.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 27 / 87
5. Sheshambal (dead) through Lrs. Vs. Chelur Corporation Chelur Building & Ors. reported in (2010) 3 SCC 470.
11. On the other hand, Mr. Dhanesh Saraswat, Advocate appearing for Mr. Ravi Bhansali, vehemently opposed the said amendment application and submitted that the same is a frivolous and mischievous application merely to delay the arguments for admission in the present second appeal and unless the substantial question of law arising in the matter, is framed by the Court, and the second appeal under Section 100 CPC is admitted, which he submitted that no such substantial question of law arises against the findings of the fact of bonafide necessity as held in catena of judgments of Hon'ble Supreme Court and this Court, the question of considering the present application for seeking amendment in written statement of defendant-tenant at this highly belated stage, after 34 years of eviction suit filed, cannot be considered at all.
12. Mr. Saraswat, learned counsel for the plaintiff-respondent-landlord also submitted that the present amendment application purportedly to show that the plaintiff has started his business in the name of M/s Shrinath Tex-Chem Engineers and purportedly has a bank account with Central Bank of India, is S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 28 / 87 nothing but an alleged fact which as per own showing of defendant was there for past 22 years since 1989 and could have been within the knowledge of the defendant-tenant, but without making any enquiry or verification and without explaining this huge and inordinate delay of 22 years and there being no basis of making such an averment in the amendment application that this fact came to the knowledge of the defendant-appellant for the first time on 24.08.2012 about the existence of this bank account since 28.11.1989 and no Bank certificate, letter, date of enquiry, the person who gave such information etc. are mentioned in the said application under Order 6 Rule 17 r/w Section 151 CPC; and just on vague and bald averments, and just to delay the arguments for admission of the present second appeal, which is pending consideration in this Court for last more than three years, such frivolous application has been filed. He further submitted that an exparte stay order has also been granted against the eviction and the same has continued for all this period despite application filed by the plaintiff-respondents-landlord seeking vacation of said interim order and this Court considered it appropriate to first hear the matter for admission but even that has not been done for last more than one and half years and today when the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 29 / 87 matter was set down for admission, such an application is filed on vague and bald submissions, and is insisted to be argued first by the learned counsel for the defendant-appellant, which is not justified. He submitted that the stay granted in favour of defendant-tenant deserves to be vacated, if the appeal itself is not argued for admission first. 13 Mr. Saraswat further submitted that even before the learned court below, the defendant- appellant had already raised the defence that there was no bonafide need of the plaintiff-landlord as he was doing his own business in the name and style of M/s Shrinath Iron & Brass factory, and after so many years, now the defendant-tenant wants to amend the written statement at this highly belated stage with vague averments that since a bank account exists as per his knowledge on 24.08.2012, the written statement is required to be amended so that the matter may be remanded again for a fresh trial on this issue. He further submitted that it is well settled legal position as per Hon'ble Apex Court's decision in the case of Gaya Prasad Vs. Pradeep Srivastava reported in (2001) 2 SCC 604 and this Court's decision in the case of Raj Kumar Vs. Mst. Shevi Bai, (CSA No.157/2005, decided 22.01.2009) that the bonafide need on the date of filing of the suit, which in the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 30 / 87 present case is 12.07.1978, has to been seen and therefore, this subsequent development, even if it is assumed for argument's sake, though there is no evidence produced by the appellant-defendant with the present application under Order 6 Rule 17 CPC, even then no such amendment in the written statement can be allowed at this stage and since no substantial question of law arises in the present appeal, the appeal itself along-with amendment application deserves to be dismissed. He, therefore, prayed that present application (IA No.12148/12), which is filed for oblique motive of not arguing the matter for admission and to delay its disposal, and to avoid eviction, the said application as well as appeal deserve to be dismissed with exemplary costs and stay order granted on 27.07.2009 deserves to be vacated.
14. I have heard the learned counsels for the parties at length for more than one hour on this application and having given my thoughtful consideration to the rival submissions, back-ground of the case, previous orders passed by this Court and the case-laws cited at the bar.
15. Let the case-laws cited on behalf of appellant-defendant in support of present amendment application be dealt-with first.
16. Mr. M.C. Bhoot, Sr. Advocate relied upon S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 31 / 87 decision of Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. reported in (2006) 6 SCC 385 in the first instance. In the said judgment, the Hon'ble Supreme Court laid down guidelines about the approach to be taken by the Courts in considering the amendment applications under Order 6 Rule 17 CPC and the Hon'ble Apex Court has held that there are two parts of Order 6 Rule 17 CPC one mandatory and one discretionary and while saying that the Courts should not go into correctness or falsity of the case in the amendment, nor record a finding on the merits of amendment at the stage of considering the prayer for amendment, the Court should also take notice of the subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice.
17. Actually this judgment rather helps the case of the plaintiff-respondent-landlord in the present case and not the defendant-tenant. It would be absolutely unfair to allow amendment in the written statement after 34 years of eviction suit filed and decreed, which despite a decree of eviction on the ground of bonafide necessity of the landlord, which is normally a finding of fact and does not give rise to any substantial question of law, such a second appeal is still pending for admission for last more than three S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 32 / 87 years. Similar defence has been considered by the learned lower appellate court in the impugned order dated 18.04.2009 on page 11 of its judgment that the plaintiff had no alternative business in M/s Shrinath Iron & Brass Factory and the appellate court below has, therefore, held that the bonafide need of the landlord existed resulting into an eviction decree against the defendant-tenant. Assuming for argument sake, that the facts stated in the application that plaintiff has a bank account in Central Bank of India, as stated, though no corroborative evidence has been produced by the defendant-applicant with the present application are taken as correct, there is neither any explanation for such belated application having been filed after 22 years of so-called existence of such bank account, nor the source of information received by the defendant-tenant on 24.08.2012 is disclosed in the application or affidavit. While on similar defence raised that the plaintiff has his own business, the court below has still decreed the suit for eviction on the ground of bonafide necessity of landlord, there appears to be no justification for allowing such an amendment under Order 6 Rule 17 CPC again in the present second appeal before this Court after so many years. The said case law, therefore, is of little avail to the defendant-appellant. It will not shorten the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 33 / 87 litigation but quite certainly lengthen the litigation. Moreover, the nature of amendment sought in written statement, nor averments made in the present application inspire any content of bonafides on the part of defendant-tenant.
18. In the case of M.C. Agrawal HUF Vs. M/s Sahara India & Ors. reported in 2008 (2) WLC (SC) Civil 459, the Hon'ble Supreme Court allowed the amendment in the plaint filed by the plaintiff when the suit was restored by the Hon'ble Supreme Court to the learned trial court for fresh trial and the plaintiff's such amendment for addition of prayer for adding cost of air tickets to be consolidated with the prayer of mesne profit in the following terms:- "awarding mesne profit equivalent to rent payable in respect of premises and the value of air tickets payable by the defendant as determined by this Court", the Hon'ble Apex Court held that such amendment could be allowed to the plaintiff, since the suit was already restored for fresh trial by the High Court by the Supreme Court and it is only for moulding the relief. This judgment is absolutely distinguishable from the facts of the present case and, therefore, is of little avail to the appellant-defendant here.
19. Mr. M.C. Bhoot, emphasized that three Judges' judgment of Hon'ble Supreme Court in the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 34 / 87 case of Hastmat Rai & Anr. Vs. Raghunath Prasad reported in (1981) 3 SCC 103, has laid down that since burden is on the plaintiff-landlord to make specific pleadings and to establish that essential statutory requirements for eviction are satisfied and that the decree does not become final till the finality of the appeal filed against it, therefore, even at this stage of second appeal, such amendment in the written statement can be permitted.
20. There is no dispute on the proposition of law as such that amendment in the pleadings can be allowed even at the appellate stage but the question is as to whether it is just and proper or just and fair to allow such amendment as claimed. The answer has to necessarily depend on the facts and circumstances of each case. In the present case, this Court is satisfied that such amendment in the written statement cannot be allowed and it would seriously prejudice the plaintiffs' case if such amendment of repetitive nature giving rise to a defence, which has already been taken/availed by the defendant-appellant and he has failed before the court below was to be allowed. The defendant-tenant cannot be allowed to re-write his defence by keep on amending his written statement endlessly throught he appellate forums. If ths was to be permitted, the trial of eviction suit will never end S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 35 / 87 and lawyer's acumen and ingenuity like that of learned counsel for appellant-defendant will keep on putting the clock back on square one. Therefore, it is not just and proper to allow such amendment at highly belated stage of 34 years since filing of the eviction suit in 1978.
21. The next judgment relied upon by the learned counsel for the appellant-defendant is in the case of Bakshish Singh Vs. Prithi Pal Singh & Ors. reported in 1995 Supp. (3) SCC 577, in which pre- emption suit filed by the co-sharer, brother of the vendor only on the ground of relationship as brother was declined by the learned trial court and the affirmed in the first appeal in the defendant's second appeal, the plaintiff-respondent sought amendment of plaint to claim pre-emption on the additional ground of his being a co-sharer, such amendment was allowed by the Hon'ble Supreme Court. Again the facts of the said case are absolutely distinguishable and the case law is of little help to the appellant-defendant in the present case.
22. On the other hand, learned counsel for the plaintiff-respondent, Mr. Saraswat, relied upon the decision of Hon'ble Supreme Court in the case of Gaya Prasad Vs. Pradeep Srivastava reported in (2001) 2 SCC 604, Gurdev Kaur & Ors. Vs. Kaki & Ors. 2006 S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 36 / 87 (2) WLC (SC) Civil 326 and judgment of this Court in the case of Smt. Sushila Devi & Ors. Vs. Shri Mahavir Kumar Sanghi reported in 2007 (4) WLC (Raj.) 165.
23. The Hon'ble Supreme Court in the case of Gaya Prasad (supra) has held that ground of eviction existed on the date of filing of the suit have to be established and following that judgment, this Court in the case of Smt. Sushila Devi (supra) has held that death of the landlord during the pendency of the appeal, does not completely eclipse the bonafide need of the landlord, as it existed on the date of institution of the suit, and no interference is called for with the findings of fact of bonafide and personal necessity in view of limited scope of Section 100 of CPC as laid down by the Hon'ble Apex Court in the case of Gurdev Kaur (supra).
24. In the case of Raj Kumar Vs. Mst. Shevi Bai, (CSA No.157/2005, decided 22.01.2009) reported in RLW 2009 (3) Raj. 2663, this Court has held as under:-
"In the case of Gaya Prasad V/s Pradeep Srivastava reported in (2001) 2 SCC 604, the Hon'ble Apex Court held that the landlord should not be penalised for the slowness of the legal system and the crucial date for deciding the bona fides of the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 37 / 87 requirement of landlord is the date of his application for eviction. Subsequent developments during the pendency of eviction petition cannot be made the basis for denying the landlord relief when the litigation at last reaches the final stage, though subsequent events may in some cases be considered to have overshadowed the genuineness of landlord's need, but only if they are of such nature and dimension as to completely eclipse such need and make it lose significance altogether, the eviction decree cannot be upset.
Consequently, this appeal of the defendant is dismissed with no costs."
This judgment is complete answer to the contentions raised by Mr. M.C. Bhoot, Sr. Advocate.
25. Having given my thoughtful consideration to rival submissions and the legal position adduced above, this Court is of the considered opinion that the present amendment application (IA No.12148/12) seeking amendment in written statement filed by the defendant-tenant before trial court deserves dismissal with costs.
26. In a suit filed 34 years back, the lengthy channels of litigation has already been taken it toll. This Court and the Hon'ble Supreme Court have time and again expressed their anguish at such huge delays S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 38 / 87 caused in such matters and merely the length of litigation becomes the success point for the tenants, who are faced with the eviction decree/s but still keep their occupation of the suit premises alive for so many years throughout the length of the litigation. While in the present case, the learned lower appellate court below has given findings of fact based on evidence led by the rival parties and held that the plaintiff-landlord has personal and bonafide need of the suit premises, this second appeal of defendant-tenant is having force in this Court and not having been argued even for admission of last more than three years.
27. Mere averments in such application that a bank account exists in the name of M/s Shrinath Tex- Chem Engineers of which Sh. Kishan Lal (plaintiff) is the proprietor is not enough. Neither the source of information, nor any documentary evidence of Bank, which is prima-facie of confidential nature, has been produced and moreover, even if such averments were to be taken at their face value, they do not result in giving rise to any issue which would require a fresh trial. What is wrong even if landlord has some business, but still needs the suit premises for his that business need. The same cannot be said to have been eclipsed by such business even if it were so. Rejecting similar defence that the plaintiff has already started S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 39 / 87 his own business, still the court below has found that bonafide need for the suit shop exists for the plaintiff- landlord. These are normally findings of fact, which do not require interference in second appeal under Section 100 of the CPC.
28. Be that as it may, the present second appeal is yet to be argued even for admission, though it is pending for last more than three years. The litigation before the two courts below have already taken 31 years and 3 years in this Court during the pendency of this second appeal without having been argued even for admission, it seriously and badly reflects that how the defendant-tenant has been able to lengthen the process of litigation and might be in the possession of the suit property at abysmally low rent of Rs.91/- only per month, much to the pain and prejudice of the landlord, who needs the suit property for his own business purposes.
29. Therefore, this Court finds that the amendment application (IA No.12148/12) moved at this stage, two days prior when the matter was set- down again for admission, and which stage of case is going on for last three years, is not only a frivolous and not bonafide application, but the same has been filed merely to make last ditch effort on the part of the appellant-defendant-tenant to set the clock back S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 40 / 87 at square one, which cannot be permitted. Therefore, the present application under Order 6 Rule 17 r/w Section 151 CPC seeking amendment in the written statement is liable to be rejected with exemplary costs and the same is accordingly rejected with cost of Rs.5,000/- to be paid by the defendant-applicant to the respondent-plaintiff forthwith.
30. The appeal may be listed for admission on 04.09.2012. It is made clear that no adjournment for making arguments for admission shall be allowed."
14. On 4/9/2012, when the matter was again listed, learned counsel for the appellant-defendant, Mr. M.C.Bhoot submitted that copy of the order adted 31/8/2012 rejecting his application under Order 6 Rule 17 CPC has not been made available to him and, therefore, he needs some more time to go through that order before arguing the matter for admission and the matter was posted on 10/9/2012 and it was made clear that no adjournment shall be granted on that date. The matter was again listed before the Court on 12/9/2012 for admission and on that date, learned counsel Mr. M.C.Bhoot again submitted that he has filed yet another application, I.A.No. 12482/2012 under Order 11 Rule 1 CPC seeking the plaintiff Kishan Lal to answer the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 41 / 87 interrogatory to the effect as to whether he was doing business since 28/11/1989 in the name of M/s Shreenath Tex Chem Engineers, raison d'etre for moving the preceding application under Order 6 Rule 17 CPC, which stood rejected on 31/8/2012 with costs of Rs.5,000/- and learned counsel for the defendant again submitted that without asking this interrogatory and without plaintiff-landlord answering that, the matter cannot be argued for admission. Upon refusal of adjournment for arguing on admission purposes on any ground whatsoever, learned counsel for the appellant-defendant argued in detail the said application under Order 11 Rule 1 CPC, and also for admission of the appeal.
15. On 12/9/2012 and 13/9/2012, during specific time allotted for this case, learned counsel for the appellant-defendant-tenant argued the case at length for approximately four hours and on the third day learned counsel for the plaintiff respondent concluded the argument in about one hour and thus order was reserved on 14/9/2012.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 42 / 87
16. As aforesaid, learned counsel for the defendant tenant vehemently submitted that the appellate court has given wholly wrong reasoning in reversing the findings of trial court in the present eviction suit, which was filed for oblique purpose for seeking eviction of defendant tenant and by setting aside the said appellate judgment, the present appeal of the defendant tenant deserves to be admitted on the substantial questions of law as suggested in the memo of appeal. CONTENTIONS ON BEHALF OF PLAINTIFF - LANDLORD
17. On the other hand, Mr. Dhanesh Saraswat for Mr. Ravi Bhansali strongly opposed the submissions made by the learned counsel for the appellant-defendant-tenant and submitted that it is well settled by now with catena of judgments of Hon'ble Supreme Court and this Court that the findings of courts below about the bonafide and reasonable necessity of the landlord are findings of facts and unless they are shown to be absolutely perverse, bereft of evidence, the second appeal with the narrower scope after the amendment of 1976 in Section 100 CPC & judgment of Hon'ble Supreme Court in Gurudev Kaur & ors. vs. Kaki & Ors. - 2006 (2) S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 43 / 87 WLC (SC ) 326, no substantial question of law arises in the present case out of such findings of facts by the appellate court, even though reversing the findings of trial court, which had gone on absolutely wrong premise that despite partition of the family property of ten shops and plaintiff having only two shops in his ownership and possession, one in the possession of M/s Samdani Kirana Bhandar, where his elder brother Satya Narain and his father were doing business and the present suit shop in the possession of defendant tenant, where he is doing the business of `Gaund' (Gum or Glue), still treated that the other alternative shop available with the other brother, namely Shri Suresh Chand Samdani, who had kept his spare parts in that shop as he has a factory in the name of M/s Shreeji Iron & Brass Factory, was also available to satisfy the need to set up the cloth business. Learned counsel for the plaintiff landlord urged that the shop in which other brother had set up Ankur Cloth Store, upon closing of the business could not be provided to plaintiff Kishan Lal as the other brother Satya Narain was the owner of the shop and plaintiff Kishan Lal could not insist upon him that said shop should be given to him for setting up the cloth business instead of seeking eviction of tenant from his own present suit shop to do his cloth S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 44 / 87 business in the same.
18. Therefore, learned counsel Mr. Saraswat urged that in this regard, the appellate court was justified in holding that the landlord was the best judge of his needs and the tenant cannot dictate terms to the landlord in this regard and on the basis of number of judgments of Hon'ble Supreme Court & of this Court, this position of law is well settled and consequently the appellate court was perfectly justified in allowing the appeal of the plaintiff landlord and the present second appeal of the tenant deserves to be dismissed with exemplary costs as the tenant has unnecessarily delayed in handing over the possession of the shop in question over all these long 34 years. REASONS FOR EVICTION / FINDINGS
19. I have heard the learned counsels at length and given my thoughtful consideration to the rival submissions and perused the record of the case and the impugned judgment of two courts below and the case laws cited at the bar. This Court and Hon'ble Supreme Court have time and again held that the findings of bonafide and S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 45 / 87 reasonable necessity of the landlord are findings of fact and they can be challenged only on very limited ground of they being perverse and unless on account of such perversity, substantial question of law is found to be arising in the matter, the narrower scope of Section 100 CPC providing for second appeal only upon such substantial question of law in the matter cannot be invoked and this Court is bound by such findings of fact given by the courts below.
20. Merely because there is reversal of findings of learned trial court by the learned first appellate court, it does not render such findings of appellate court perverse, merely because they are against a particular party to the litigation. Adversity of findings is no ground to brand them perverse. The whole effort of the tenant in the present case to deny eviction was based on wholly erroneous premise, namely; that despite the factum of partition through the registered partition deed dated 7/8/1969, the shops became available to the father of the plaintiff Kishan Lal, namely Ram Niwas Samdani or to the family as such, and the claimed need of the plaintiff Kishan Lal for setting up his cloth business could be satisfied and all the interim applications filed by the defendant tenant up to the stage of final S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 46 / 87 arguments before this Court are for this purpose, which have been rejected. The other contention of the defendant tenant that plaintiff Kishan Lal had started his own business and, therefore, his need for the suit shop vanished is equally devoid of merit as already held in large number of cases and even while rejecting the application of tenant by this Court under Order 6 Rule 17 CPC that the plaintiff Kishan Lal could not be expected to sit idle and remain unemployed throughout the long history of litigation, when from the age of achieving adulthood he has now become an old man of 50 years, he should have waited doing nothing. Even if he has started some other business assuming for the argument sake, his need for the suit shop on the date of filing suit to set up cloth business cannot be said to have totally eclipsed or vanished with such start of business. He can well have his cloth business set up in the suit shop even now when the possession is handed over to the plaintiff by the defendant - tenant.
21. The learned appellate court has discussed all these reasons and relying upon the partition deed, a registered document, has categorically held that availability of alternative shops, which was admittedly owned and possessed by other brothers, could not satisfy S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 47 / 87 the need of the present plaintiff - Kishan Lal and out of only two shops available to him in the family property, in one of the shops, the family business in the name of `Samdani Kirana Bhandar' is being run by his elder brother Satya Narain and on which shop his father Ram Niwas Samdani also used to sit for sometime & even plaintiff Kishan Lal did sit for sometime with his brother in M/s Shreeji Iron and Brass Factory to earn his livelihood and that could not amount to finishing his own need and for his own shop to set up his own business independently in the second and present suit shop. It would be too much to ask the plaintiff landlord to either keep waiting and do nothing and not to earn any livelihood, so long as he fights the eviction suit, which as is well known and ill famous by now, takes long number of years for reasons beyond control of anybody.
22. This court is of considered, clear and of firm opinion that the defendant tenant in the present case is not entitled to retain possession of the suit shop any more and the eviction decree against him by the appellate court deserves to be upheld and the learned trial court had obviously fallen in grave error while it held that the eviction suit was filed with oblique motive by the landlord. Such a perverse, narrow S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 48 / 87 and pedantic approach of the learned trial court was rightly reversed by the appellate court. This Court fully affirms the findings of first appellate court and they are accordingly so affirmed & this is where this Court sees the truth & justice on the other side of the fence, where the learned counsel for the defendant tenant wanted this Court to see.
23. Before concluding, a brief review of case laws cited by both the sides is considered appropriate.
CASE LAWS CITED BY THE APPELLANT-DEFENDANT- TENANT
24. The judgment of Hon'ble Supreme Court, three Judges bench decision in the case of M.M.Quasim vs. Manohar Lal Sharma & ors. - (1981) 3 SCC 36 heavily relied upon by the learned counsel for the defendant tenant, Mr. M.C.Bhoot, dealt with a case arising under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947, in which the definition of landlord required him to be the `owner' of the building, who has a right to occupy the suit premises in his own right, S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 49 / 87 where eviction was sought for bonafide personal requirement of landlord under Section 11(1)(c ) of that Act & where the eviction is sought by the landlord, who no longer remained owner of the suit property and having lost all interests in the property, the Hon'ble Supreme Court while refusing eviction on the ground of bonafide necessity to such a landlord, who was not owner of the property and, therefore, did not fall within the definition of the `landlord' under the Bihar Act, made some observations, which are strongly relied upon by the learned counsel for the defendant tenant here. Those observations in para 18 of the said judgment are quoted below for ready reference:-
"Before turning to the next topic, a word about the judicial approach to the question of personal requirement of the landlord under the Rent Act would not be out of place. The learned judge of the first appellate court while upholding the claim of personal requirement of respondent 1 has observed as under:
"It is for the plaintiffs to decide whatever they think fit and proper. It is not for the defendant to suggest as to what they should do. The defendant has led evidence to show S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 50 / 87 that the plaintiffs have got some more houses at Girdih.... The defendant appellant has also filed certified copy of judgment of one suit No. 47/73 which is Ext. only to show that plaintiffs have got a decree for eviction with respect to the other house at Giridih. I have already pointed out earlier that it is for the plaintiffs to decide which of the houses is suitable for them. It is not for the defendant to suggest that the house which will fall vacant in the near future is most suitable house for the plaintiffs".
This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States in the country. The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 51 / 87 conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison de'etre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, therefore,it becomes the duty of the Court administering the Rent Act to bear in mind the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 52 / 87 object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of necessities of life-shelter-and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe. In 'The Sociology of Law', edited by Pat Carlen, the author examines the rent and rent legislation in England and Wales and observes as under:
"Theprevailing paradigms of neo-
classical economics and empiricist political theory have determined the conceptual insularity of law and legal institutions, with the result that they and other social events appear as random existences independent of their historical formation. The force of any theory of law must of course lie in its explanatory power, and this in turn depends on the wider image of social relations which produces it".
25. The aforesaid observations of the Apex Court, with great respects to the learned counsel, do not support him because the restrictive meaning of the term `landlord' as obtaining in Bihar Act is S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 53 / 87 not to be found in Rajasthan Act. The definition of `landlord' in Rajasthan Act covers owner as well as any person collecting rent on his behalf. The said definition as contained in the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 and the new Rajasthan Rent Control Act, 2001 repsectively are reproduced below for ready reference:-
`3(iii)."Landlord" means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver or any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant."
`2(c) "Landlord" means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver or any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant."
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 54 / 87
26. The eviction on the ground of bonafide need under the Bihar Act under Section 11 (1) (c ) dealt with by the Hon'ble Apex Court in M.M.Quasim's case (supra), leading the Apex Court to observe that a person claiming possession on the ground of his reasonable requirement of the leased building must show that he is landlord in the sense that he is owner of the building and has a right to occupy the same in his own right, would not be available to a person, who no longer remained the owner of the suit property. Relevant para 14 of the said judgment is also quoted below to really understand the context in which the Hon'ble Apex Court made the aforesaid quoted observations.
"14. The expression 'landlord' has been defined in s. 2 (d) of the Rent Act which reads as under:
"landlord" includes the persons who for the time being is receiving, or is entitled to receive, the rent of a building whether on his own account or on behalf of another, or on account or on behalf or for the benefit, or himself and others or as an agent, trustee, executor, administrator,receiver or guardian or who would so receive the rent,or be entitled to receive the rent if the building werelet to a tenant."
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 55 / 87 The inclusive definition is couched in very wide language. However this wide amplitude of the expression has been cut down by the explanation appended to sub-clause (c) of sub- section (1) of s. 11 which reads a under:
11. Eviction of tenants: (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Dispute Act, 1947 and to those of section 12, where a tenant is in possession of any building, he shall not be liable to eviction there-from except in execution of a decree passed by the Court on one or more of the following grounds;-
(c) Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord;
Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 56 / 87 shall thenceforth constitute the building within the meaning of clause (aa) of section 2, and the rent so fixed shall be deemed to be the fair rent fixed under section 5;
Explanation: In this clause the word "landlord" shall not include an agent referred to in clause (d) of section 2."
Therefore, while taking advantage of the enabling provision enacted in s.11 (1) (c), the person claiming possession on the ground of his reasonable requirement of the leased building must show that he is a landlord in the sense that he is owner of the building and has a right to occupy the same in his own right. A mere rent collector, though may be included in the expression landlord in its wide amplitude cannot be treated as a landlord for the purposes of s. 11 (1)
(c).This becomes manifestly clear from the explanation appended to the sub-section. By restricting the meaning of expression landlord for the purpose of section 11(1)(c), the legislature manifested its intention namely that landlord alone can seek eviction on the ground of his personal requirement if he is one who has a right against the whole world to occupy the building himself and exclude any one holding a title lesser than his own.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 57 / 87 Such landlord who is an owner and who would have a right to occupy the building in his own right, can seek possession for his own use. The latter part of the section envisages a situation where the landlord is holding the buildings for the benefit of some other person but in that case landlord can seek to evict tenant not for his personal use but for the personal requirement of that person for whose benefit he holds the building. The second clause contemplates a situation of trustees and cesti que trust but when the case is governed by the first part of sub clause (c) of sub-section (1) of s.11, the person claiming possession for personal requirement must be such a landlord who wants possession for his own occupation and this would imply that he must be a person who has a right to remain in occupation against the whole world and not someone who has no subsisting interest in the property and is merely a rent collector such as an agent, executor, administrator or a receiver of the property. For the purposes of s.11(1)(c) the expression landlord could, therefore, mean a person who is the owner of the building and who has a right to remain in occupation and actual possession of the building to the exclusion of everyone else. It is such a person who can seek to evict the tenant on the ground that he requires possession in good faith for S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 58 / 87 his own occupation. A rent collector or an agent is not entitled to occupy the house in his own right. Even if such a person be a lessor and, therefore, a landlord within the expanded inclusive definition of the expression landlord, nonetheless he cannot seek to evict the tenant on the ground that he wants to personally occupy the house. He cannot claim such a right against the real owner and as a necessary corollary he cannot seek to evict the tenant on the ground that he wants possession of the premises for his own occupation. That can be the only reasonable interpretation one can put on the ingredients of sub- clause (c) of s. 11(1) which reads: "Where building is reasonably and in good faith required by the landlord for his own occupation.. ".Assuming that the expression 'landlord' has to be understood with the same connotation as is spelt out by the definition clause, even a rent collector or a receiver of the property appointed by the Court in bankruptcy proceedings would be able to evict the tenant alleging that wants the building for his own occupation, a right which he could not have claimed against the real owner. Therefore,the explanation to clause (d) which cuts down the wide amplitude of the expression 'landlord' would unmistakably show that for the purposes of clause (c) such landlord who in the sense in which the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 59 / 87 word 'owner' is understood can claim as of right to the exclusion of everyone, to occupy the house, would be entitled to evict the tenant for his own occupation."
27. Since the definition of `landlord' contained in Rajasthan Act is significantly different from the definition contained in Bihar Act, without any such Explanation curtailing the ambit & scope of eviction sought under Section 13(1)(h) of the Act for personal requirement of landlord, learned counsel for the defendant tenant cannot draw any support from these observations of the Hon'ble Apex Court.
28. More over, as held by Hon'ble Supreme Court itself in a recent decision of two Judges bench in Satyawati Sharam vs. Union of India - (2008) 5 SCC 287, which has been later on reaffirmed by three Judges bench decision of Hon'ble Apex Court in State of Maharashtra & anr. vs. Super Max International Private Ltd. & Ors. - (2009) 9 SCC 772 in which the Hon'ble Apex Court has clearly noticed that even the trend of Apex Court has shifted from pro-tenant from 1950s to 1990s to pro-landlord from 1990s onwards. The relevant extracts from the judgments in case of Satyawati S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 60 / 87 Sharma (supra) & Super Max International Pvt. Ltd. are quoted below for ready reference:
"12. There has been a definite shift in the court's approach while interpreting the rent control legislations. An analysis of the judgments of 1950s to early 1990s would indicate that in majority of cases the courts heavily leaned in favour of an interpretation which would benefit the tenant. In these cases the Court consistently held that the paramount object of every rent control legislation is to provide safeguard for tenants against exploitation by landlords who seek to take undue advantage of the pressing need for accommodation of a large number of people looking for a house on rent for residence or business in the background of acute scarcity thereof. However, a different trend is clearly discernible in the later judgments."
29. The relevant para 71 of the judgment of Apex Court in Super Max International (P) Ltd. (supra) is quoted below for ready reference:
"71.We reaffirm the views expressed in S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 61 / 87 Satyawati Sharma and emphasise the need for a more balanced and objective approach to the relationship between the landlord and tenant. This is not to say that the Court should lean in favour of the landlord but merely that there is no longer any room for the assumption that all tenants, as a class, are in dire circumstances and in desperate need of the Court's protection under all circumstances. (The case of the present appellant who is in occupation of an area of 9000 sq. ft. in a building, situate at Fort, Mumbai on a rental of Rs. 5236.58/-,plus water charges at the rate of Rs. 515.35/- per month more than amply highlights the point)"
30. In view of this, the reliance placed by the learned counsel for the defendant tenant on M.M.Quasim's case (supra) is rather misplaced and not applicable in the facts of the present case.
31. A recent decision of Hon'ble Supreme Court in Maria Margarida Sequeira Fernandes & Ors. vs. Erasmo Jack De Sequeira - (2012) 5 SCC 370, as already discussed above, was relied upon by the learned counsel for the defendant-tenant mainly in support of his last application under Order 11 Rule 1 CPC and learned S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 62 / 87 counsel submitted that to ascertain the truth, which is the guiding star in the process of litigation, has already been dealt with above & fully relying upon the said judgment, this Court has found that truth and justice lie in the present case in upholding the eviction decree.
In lighter way it can also be observed that the defendant tenant while carrying on the business of `Gaund' (Gum or Glue) has stuck in the suit premises for 34 years despite eviction sought by the landlord for his personal and bonafide requirement.
32. Relying on the judgment in the case of Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Os. - (2010) 13 SCC 216, learned counsel for the appellant-defendant submitted that the powers of this Court even under Section 103 CPC should be exercised if the core issue involved in the case is not decided by the trial court or the appellate court and the relevant material is available, this Court even can give finding of fact invoking Section 103 CPC, besides framing substantial question of law under Section 100 CPC. In view of the aforesaid conclusion of this Court against the defendant-tenant on facts, this judgment is of little help to the defendant tenant.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 63 / 87
33. In D.R.Rathna Murthy vs. Ramappa - (2011 ) 1 SCC 158 for the purpose of interference with the findings of fact under Section 100 CPC, the Hon'ble Supreme Court held that the High Court can interfere with findings of fact when findings recorded by courts below are found to be perverse and reappreciation of evidence is permissible in exceptional cases. There is no quarrel with the proposition of law but it does not help the defendant tenant as the Court has come to the conclusion that finding of facts recorded by the appellate court are correct and genuine and are not perverse in any manner.
34. The judgment in the case of Dnyaneshwar Ranganath Bhandare & anr. vs. Sadhu Dadu Shettigar & anr. - (2011) 10 SCC 433 has been relied by the learned counsel for the defendant-tenant for the proposition that the inference and legal effect from proved facts is a question of law and inference drawn by the first appellate court, if wholly unwarranted, give rise to substantial question of law is again a proposition of law well settled but not applicable to the rescue of defendant tenant in the present case.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 64 / 87
35. Relying on V. Kishan Rao vs. Nikhil Super Speciality Hospital & anr. - (2010) 5 SCC 513 the learned counsel for the defendant urged that when the judgment is rendered by ignoring the provisions of statute and earlier larger bench decisions on the point, such decision is per incuriam. Learned counsel for the defendant submitted that the later decisions on the theory `landlord being the best judge' being contrary to the decision of Supreme Court of three Judges bench decision in M.M.Quasim's case (supra), the later decisions of two judges bench were per incuriam. This Court with respect does not agree with the learned counsel as the later decisions are not in conflict with the proposition of law laid down by the Supreme Court in three judges bench decision in M.M.Quasim's case, which has been discussed in detail above & found to be distinguishable on facts of the present case.
36. The Hon'ble Supreme Court in Satyawati Sharma vs. Union of India & anr. (2008) 5 SCC 287, which has been reaffirmed and followed in three judges bench decision in State of Maharashtra & anr. vs. Super Max International Private Ltd. & Ors. - (2009 ) 9 SCC 772 held that there is a shift in trend in the litigation in rent S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 65 / 87 control and eviction matters from 1950s to 1990s. In various Supreme Court decisions after 1990 till now, the shift is in favour of landlord, where bonafide need of the suit premises is claimed. Therefore, there is no question of holding that all such later judgments are per incuriam as the learned counsel for the defendant-tenant sought to argue. The said argument is liable to be rejected and same is accordingly rejected.
37. In Sri Balaji Krishna Hardware Stores vs. Srinivasaiah - AIR 1998 SC 994, the Hon'ble Supreme Court in the peculiar facts and circumstances held that action of the landlord was not bonafide when during the pendency of proceedings, the other shop behind the suit shop had fallen vacant but the same was given to the daughter-in-law of the landlord and it was not stated that her need was greater than son's business and there was no explanation as to why it was not suitable for landlord's son. This judgment on its own facts is clearly distinguishable from the facts of present case, therefore, is of little help to the appellant-defendant-tenant.
38. The decision of Hon'ble Supreme Court in the case of Jagdish S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 66 / 87 Singh vs. Madhuri Devi - (2008) 10 SCC 497 was relied upon by the learned counsel for the purpose of submitting that the appellate court in the present case did not deal with all the points discussed by the trial court. Learned counsel submitted that the Hon'ble Apex Court held that the first appellate court is expected, nay bound, to bear in mind the finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of original court but they have to be execised with proper care, caution and circumspection and when a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonableness.
39. The proposition of law narrated above is also well settled but this Court finds that the appellate court has dealt with all the issues raised before the trial court regarding bonafide need of the landlord and returned the proper and cogent findings in the present case.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 67 / 87 Therefore, the proposition of law, as narrated above, stands met fully in the present case.
CASE LAWS RELIED UPON BY PLAINTIFF-LANDLORD
40. In V.Ramachandra Ayyar & anr. vs. Ramalingam Chettiar & anr. - AIR 1963 SC 302, the three Judges bench of Supreme Court in para 17 and 21 held that the High Court was not justified in interfering with the finding of fact recorded by the lower appellate court merely because the judgment of the lower appellate court was not as elaborate as that of trial Judge, or because some of the reasons given by the trial Judge had not been expressly reversed by the lower appellate Court. The finding of the lower appellate court could not be said to be perverse or not supported by any evidence.
41. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar &Ors
- (1999) 3 SCC 722, the Hon'ble Apex Court held that scope of second appeal after amendment in 1976 is very narrow. The Hon'ble Supreme Court held in para 3 that after the amendment a second appeal can be filed only if a substantial question of law is involved in S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 68 / 87 the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such question was not formulated at the time of admission either by mistake or by inadvertence.
42. To the same effect, in Gurdev Kaur & Ors. Vs. Kaki & Ors. 2006 (2) WLC (SC) 326, the Hon'ble Apex Court held as under:-
"Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 69 / 87 jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "thi rd trial on facts"or "onemore dice in the gamble"
. The effect of the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 70 / 87 shall be heard only on that question."
43. In Smt. Ramkubai through L.Rs & ors. vs. Hajarimal Dhokalchand Chandak & Ors. - AIR 1999 SC 3089, the Hon'ble Supreme Court negativing the similar contention as raised by the learned counsel for the defendant-tenant before this Court in the present case held as under:-
" It is correct that Bhikchand was unemployed on the date of filing of the suit but he could not be expected to idle away the time by remaining unemployed till the case is finally decided. It has already taken about 25 years. Therefore, we do not think that taking up contractor work, in the meanwhile, will militate against his carrying on the business of Kirana which is his family business, which was carried on by his father and is being carried on by his brother independently. The facts that the landlady during her life time was a partner in the firm carrying on Kirana business and her elder son is carrying on Kirana business do not disentitle Bhikchand to establish his own business. We are not impressed by the other reasoning and conclusion of the Appellate Court which are confirmed by the High S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 71 / 87 Court. In our view, none of the reasons leads to the inference that Bhikchand did not intend to start family Kirana business, so relief cannot be denied to the landlady to recover the suit premises for personal requirement of Bhikchand to establish Kirana business independently."
44. Similarly, in Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal & Ors. - (2005) 8 SCC 252, the Hon'ble Supreme Court held that where the eviction is sought for bonafide requirement of landlord, the relevant date on which the said need has to be adjudged is the date of filing the suit and subsequent events taking place during the period of litigation like engaging in other activity or business for which premises in question is required do not upset such bonafide need unless such subsequent events are of such a nature & dimension as to completely eclipse such need and make it lose significance altogether and the process of litigation cannot be made the basis for denying the landlord relief when litigation at last reaches the final stage.
45. In G.C.Kapoor vs. Nand Kumar Bhasin & Ors. - 2002 WLC S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 72 / 87 (SC) 91, the Hon'ble Supreme Court held as under:
"9. It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Datatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Another [1999 (4) SCC 1], this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to be prove it but there is no warrant for presuming that his need is not bonafide. It was also held that while deciding this question, court would look into the broad aspects and if the court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt.
10. In Raghunath G. Panhale (D) by Lrs. v. Chaganlal Sundarji and Co. [1999 (8) SCC 1] this Court inter alia held that it was not necessary for landlord to prove that he had money to invest in the new business contemplated nor that he had experience of it. It was a case for eviction on the ground of bona fide requirement of the landlord for non-residential purpose, as he wanted to start a grocery business in the suit premises to improve his livelihood.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 73 / 87
11. Regarding financial capacity of the appellant, the courts below have held that appellant did not have financial capacity. From records, we find that the appellant had produced revenue records to show his ownership over agricultural land in additional to the suit premises and made a categorical statement that he would be able to raise fund from financial institutions. Both the courts below with mathematical precision considered this aspect while coming to the fact that he does not have financial capacity. We are of the view that these are irrelevant consideration as the question of having necessary fund to start the business is not at all necessary in view of the law laid down by this Court in the above decision namely Dattatraya Laxman Kamble (supra). That apart, as the appellant has got immovable property, it would not be difficult for him to raise necessary fund and therefore we hold that the finding on this point of the courts below is not sustainable."
46. In Prativa Devi vs. T.V.Krishnan -(1996) 5 SCC 353, the three Judges Bench of the Hon'ble Supreme Court while holding that the landlord is the best judge of his residential requirement observed as under:-
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 74 / 87 "The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dicate to the landlord how and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court was rather solicitous about the age of the appellant and thought that because of her age she needed to be looked after. That was a lookout of the appellant and not of the High Court. The gratuitous advice given by the High Court was uncalled for. There is nothing to sh ow that she had any kind of right whatever to stay in the house of the family friend. On the other hand, she was there merely by sufferance. There is no law which deprives the landlord of the beneficial enjoyment of his property. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bonafides of the claim of the landlord under Section 14(1)(e) of the Act. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bonafide personal requirement of the demised S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 75 / 87 premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances."
47. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta - (1999) 6 SCC 222, the Hon'ble Apex Court in para 13 held as under:-
"The term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra- distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 76 / 87 determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord."
CONCLUSION
48. In view of aforesaid position of law, this Court is fully satisfied that in the present case the learned appellate court was justified in returning the findings of fact about the bonafide need of the landlord and reversing the findings of trial court and has rightly held that the eviction decree deserves to be granted in the present case.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 77 / 87
49. Further, the application filed by the defendant tenant under Order 11 Rule 1 CPC is frivolous and merely seeks, undoubtedly, a review of the order passed by this Court on 31/8/2012 rejecting the application of the defendant tenant under Order 6 Rule 17 CPC for same purpose. Such application under Order 11 Rule 1 CPC serves the purpose of such interrogatory to reveal the truth generally at the initial stage of the trial and not for finding latent truth on a mere allegation at the belated stage of second appeal when all facts pleaded already stand traversed, proved & established during this long trial. It is gross abuse of the said provision at the stage of second appeal, where two courts below on ample evidence concluded at the stage of trial and even through amendments allowed or rejected at the appellate stage and the trial has come all the way in the form of second appeal before this Court, which lies only on substantial question of law, if at all arising. The detailed order passed by this Court on same premise rejecting the defendant's application under Order 6 Rule 17 CPC was to put an end to such effort of the defendant tenant but it appears that this application under Order 11 Rule 1 CPC again was moved to avoid the argument at the admission stage of second appeal and to delay the final disposal of the case, as S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 78 / 87 far as possible & to seek a review of that order in a disguise. While deprecating the practice of defendant tenant in this regard, this Court dismisses the said application under Order 11 Rule 1 CPC also without any cost for the same, since the appeal itself is now being disposed of by this order.
EVICTION DECREE
50. In the considered opinion of this Court, no substantial question of law arises in the present second appeal of defendant-tenant & the same deserves to be dismissed and same is accordingly dismissed with costs of Rs.10,000/-.
51. The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit property to the respondent-plaintiff (landlord) within a period of six months from today and shall pay costs aforesaid & mesne profit @ Rs.5000/- per month commencing from October, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 79 / 87 the respondent-plaintiff till the vacant possession is handed over to the plaintiff & defendant shall also pay arrears of mesne profit/rent, if any within three months, otherwise such amount will carry interest at the rate of 9% p.a. and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant-tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same and, if so created, the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or mesne profits are not paid to the respondent-plaintiff/landlord within a period of six months from today, besides expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of the judgment be sent to both the parties and trial court forthwith.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 80 / 87 EPILOGUE
52. Before parting, this Court would like to make a suggestion to the State Government/Legislative Assembly for amendment in Rent Control & Eviction Law. Some of the senior counsels, who usually appear in Rent Control matters were also put this suggestion & their views also go along with it. Based on sad experience of long litigation in this field and fruits of litigation becoming available to the successful party after 20 to 35 years and to introduce proper checks and balances & to make the law more equitious, though under the new law in the form of Rajasthan Rent Control Act, 2001 brought into force w.e.f. 1.4.2003 repealing the old Rajasthan Premises (Control of Rent & Eviction) Act, 1950, this Court would like to suggest that the concept of periodic renewal of tenancy should be introduced in the Rent Control Act by a non-obstante clause. It may be a period of three years in a case of residential accommodation and five years in the case of commercial premises and unless by mutual fresh agreement the tenancy is renewed between the landlord and tenant upon such fresh terms and rent as they may agree, the S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 81 / 87 tenancy should be deemed to have come to an end upon expiry of such period and landlord should be granted the certificate of recovery of possession immediately upon expiry of such period say within one month. The burden should be cast upon the tenant to approach the landlord for seeking renewal of Tenancy Agreement well before expiry of stipulated period in the original rent agreement, say six months or three months, as the case may be and unless such renewal by way of fresh rent agreement is executed within three months maximum period from the end of original tenancy period of 3 or 5 years, as the case may be, the tenancy/lease should be deemed to have come to an end and the tenant/lessee should be held liable for eviction by deeming fiction in law forthwith without need to go through litigation process or requirement of Eviction Petition & the Rent Tribunal may be authorised to issue certificate for recovery of possession to the landlord immediately after expiry of three months from the end of period of tenancy, maximum within one month within which the Rent Tribunal by a short notice to the tenant may only ascertain, whether any new Lease or Rent Agreement has been entered into or not with no laxity for giving extended time. Since the mutuality of agreement is the overriding factor, unless such fresh S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 82 / 87 Agreement exists, the Certificate of Possession should be handed over forthwith.
53. The anxiety of the Hon'ble Supreme Court expressed recently in the case of Satyawati Sharma vs. Union of India - (2008) 5 SCC 287, reaffirmed by 3 Judges bench in State of Maharashtra & anr. vs. Super Max International Pvt. Ltd. & Ors. - (2009) 9 SCC 772 deserves to be taken note of in this regard, discussed in para 25 & 26 above.
54. Though the new Rent Control Act, 2001 has introduced the concept of limited period tenancy in the case of residential accommodation not exceeding three years in Section 8 of the Act of 2001 but that provision also is hedged with various conditions against the interest of landlord like filing of joint petition and that landlord cannot be granted the certificate of recovery of possession more than three times for the same premises and the summary procedure to be undertaken by the Rent Tribunal in Section 16 of the Act for hearing and disposing of such petitions under Section 8 and 10 of the Act. Despite statutory time limit fixed for various S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 83 / 87 procedures to be undertaken by the Rent Tribunal and by the Appellate Rent Tribunal, such time limits are rarely followed and complied with for various reasons even beyond the control of Tribunal concerned and sheer volume of work with such Tribunals can be a great impediment in abiding by these time limits provided in these provisions.
55. The Act also further provides for appeals & revisions. Even writ petitions are filed against appellate order but experience shows that such matters reach even upto the Supreme Court, taking in its course, a great toll of time for variety of reasons which are beyond the control of anybody concerned. The grounds of eviction as contained in the old Act of 1950 have been repeated in Section 9 of the new Act of 2001 though with some wise amendments by the experience of litigation under the old Rent Act of 1950, still the grounds with similar terminology in the new Act of 2001 are likely to prolong the litigation in those cases even under 2001 Act where the limited period tenancy is not entered into by the parties. Section 10 of the new Act gives right to landlord to recover immediate possession only in certain specific cases like Member of the Armed Forces, S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 84 / 87 Employees of Central or State Government, Senior citizens or upon death of the landlord. But these provisions also mandatorily require the landlord to seek eviction through litigation process before the Rent Tribunal and despite expeditious disposal envisaged under Sections 15 and 16 of the new Act of 2001, the experience has shown otherwise and even eviction under the new Act cannot be really achieved within the stipulated time frame.
56. To further improve the situation and to introduce proper checks and balances in the legislation, lest such legislation appears to be leaning pro-tenant, as the experience of old Act of 1950 and the implementation of new Act of 2001 has so far shown, the aforesaid suggestion of introducing renewal of the fixed term tenancy/lease for all types of premises, be it residential or commercial, grant of certificate of recovery of possession immediately unless the new Rent Agreement at the instance of tenant with the agreement of landlord, is made within three months after the lapse of period stipulated in the original Tenancy Agreement, deserves to be seriously and earnestly considered by the State Legislature.
S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 85 / 87
57. The following new provisions can be considered to be introduced in 2001 Act to achieve the aforesaid objective of introducing the concept of renewal of fixed terms tenancies.
8A. Fixed term Tenancies to lapse unless renewed by new agreement between landlord & tenant.
Notwithstanding anything contained in any other provision of other laws & this Act, the landlord & tenant may enter into a fixed term tenancy by a mutual agreement in writing for a period upto 3 years in case of residential accommodations and upto 5 years in any other case and such fixed term tenancy shall be deemed to come to an end upon the expiry of such period stipulated in such agreement.
Provided that the tenant may approach the landlord by a request in writing for renewal of tenancy for a further period not exceeding 3 years in case of residential accommodations & 5 years in other cases, within three months prior to expiry of the period of S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 86 / 87 tenancy on such fresh terms as both the parties may mutually agree in writing and unless such new renewal agreement is entered into by both the parties, not later than 3 months after the expiry of the period stipulated in the original tenancy agreement, the landlord will be deemed to be not agreeable to any such renewal of tenancy and the tenancy period shall be deemed to be over on the expiry of 3 months period from the expiry of original tenancy agreement.
16 A. Procedure for issuing Certificate of Recovery of Possession in cases covered under Section 8 A of the Act.
If the landlord approaches the Rent Tribunal for issuance of Certificate of Possession of suit premises after expiry of period of tenancies covered under Section 8-A of the Act with an application that tenant has failed to handover the peaceful & vacant possession of the suit premises after expiry of the period specified in Tenancy Agreement, the Rent Tribunal, shall, after ascertaining from tenant by a short S.B.CIVIL SECOND APPEAL NO. 197/2009 Gopal Krishna & ors. vs.Kishan lal & Anr.
Judgment dt: 25/9/2012 87 / 87 notice of not more than 15 days that no renewal of tenancy agreement in terms of proviso to Section 8-A exists, the Rent Tribunal shall forthwith issue the Certificate of Possession within one month of filing of the application by the landlord & shall ensure that vacant & peaceful possession of the suit premises is handed over to the landlord immediately.
58. Copy of the judgment be also sent to the Chief Secretary to the Government of Rajasthan & Principal Law Secretary for needful action in this regard.
(DR.VINEET KOTHARI), J.
Baweja, P.S.