Rajasthan High Court - Jaipur
Babu Lal vs Shripat Lal And Anr. on 29 August, 2003
Equivalent citations: RLW2004(1)RAJ37, 2003(4)WLC782
JUDGMENT Goyal, J.
1. This civil second appeal under Section 100 C.P.C. filed by the plaintiff-appellant is preferred against the judgment and decree dated 9/1/1991 whereby the learned Additional District Judge No. 1, Bharatpur allowing two regular first appeals No. 3/1989 and 4/1989 set aside the judgment and decree dated 29/9/1984 by which learned Munsif, Bayana decreed the suit of eviction filed by the plaintiff and further determined standard rent of the suit shop Rs. 150 per month in the civil suit filed by the respondents.
2. Facts in brief are that the plaintiff Babu Lal filed civil suit No. 49/1982 in the court of learned Munsif, Bayana on 26/5/1982 on the grounds of default in payment of rent, reasonable and bonafide necessity and to carry out repair work in the shop with the averments that the shop in question situated any Bayana was let out to the defendants Lilli Ram and Shripat Lal (father and son) on monthly rent of Rs. 150/- with effect from 1/7/1978. The defendants did not make any payment of the rent from 1/8/1980 and further the plaintiff requires this shop reasonably and bona fide for his own use and for his son Vishnu Kumar and further this shop is in a very bad condition, hence it is also required for repair and reconstruction.
3. Joint written statements on behalf of the defendants was filed on 14/7/1982 admitting the tenancy but denying all the grounds of eviction. According to the defendants, this shop was taken on rent initially in 1970 on monthly rent of Rs. 45/- and the rent was enhanced to Rs. 90 per month with effect from 1/1/1975 and thereafter the rent was not enhanced as pleaded in the plaint.
4. The defendants also filed a civil suit No. 43/1982 on 17/5/1982 with a prayer to determine standard rent Rs. 45/- per month. Plaintiff Babu Lal filed written statement.
5. Thereafter, learned Munsif consolidated both the suits. 13 issues were framed and after recording evidence of the parties and having heard learned counsel, the learned Munsif vide judgment dated 29/9/1984 came to this conclusion that vide Ex. 15 dated 1/7/1978, monthly rent was enhanced to Rs. 150/-; that the defendants committed default in payment of rent from 1/8/1980; that the plaintiff requires the suit shop reasonably and bona fide; that comparative hardship would be caused to the plaintiff; that partial eviction would not serve any purpose and thus the suit of eviction and arrears of rent was decreed. However, issue No. 4 with regard t repair of the shop was decided against the plaintiff. Further the standard rent was fixed Rs. 150/- per month from 1/7/1978.
6. Both the appeals filed by only Shripat Lal were allowed vide common judgment dated 9/1/1991 fixing the standard rent Rs. 70 per month with effect from 1/11/1984. It was also held that excess rent paid would be adjusted. Further decree of eviction was set aside. Hence the present second appeal by the plaintiff.
7. On 14/8/1991 following questions of law were framed :
(i) Whether the finding regarding reasonable and bona fide necessity is perverse and against the law and the first appellate court has erred in not following the decision of this Hon'ble Court ?
(ii) Whether the First Appellate Court has erred in fixing the standard rent of the suit premises and the findings are against law ?
8. Vide order dated 4/8/2003 learned counsel for the appellant did not press the prayer for relief with regard to standard rent determined in first appeal. Thus, the second point framed by this Court now does not require any decision on merits. Only question remains for consideration is as to whether the finding of the first Appellate Court with regard to reasonable and bona fide necessity is perverse and against the law ?
9. I have heard learned counsel for the parties. Learned counsel for the plaintiff-appellant contended that there was no ground to interfere with the finding arrived at by learned Munsif on this point. According to learned counsel, the first Appellate Court has wrongly read the evidence as it was proved by oral evidence as well as Ex. 18 that the plaintiff was suffering from cataract and thus he was physically unfit to continue the job of Munshi of an advocate. It was argued that on the one hand, the learned first Appellate Court held that execution of Ex. 15 is not proved and on the other hand placing reliance upon Ex. 15 came to this conclusion that this indicated that the plaintiff wanted to enhance the rent and the reasons given by the learned first Appellate Court are not sound at all to interfere with the finding of the trial court on this issue. It was also submitted that the learned first Appellate Court has reversed the finding of the trial court on this issue mainly in view of the subsequent events as stated in application filed under 41 C.P.C. on behalf of the defendants and even the subsequent events were not sufficient at all to reverse the finding of the trial court. He placed reliance upon following judgments :-
(i) Gaya Prasad v. Pradeep Shrivastava (1), where in it was held that bona fide need of landlord should be considered on the date of making the application and the subsequent developments can be taken into account only when need of landlord is completely eclipsed.
(ii) G.C. Kapoor v. Nand Kumar Bhasin and Ors. (2), wherein it was held that prayer of eviction cannot be rejected on the ground that the landlord did not have capacity to generate a fund of Rs. 10 lacs for running the proposed centre and did not start business between 1992 and 1997 by taking another property on rent.
(iii) Padam Chand v. Smt. Narbada Bai (3), wherein it was held that it cannot be said that plaintiff has given up idea of doing his own business in suit premises on the ground that he has joined service during pendency of the suit which was filed before 15 years.
(iv) Sukh Lal v. Legal Representatives of Narayan Das and Anr. (4). Wherein it was held that in case the landlord start business during suit in rented shop, requirement does not cease.
(v) Dhannalal v. Kalawatibai and Ors. (5), wherein it was held that plea of availability of alternative accommodation to the landlord so as to defeat his requirement, must be one owned by the landlord and not tenanted premises.
(vi) Raj Kumar Khaitan and Ors. v. Bibi Zubaida Khatun and Anr. (6), wherein it was held that landlord is not required to indicate the precise nature of the business which they intended to start in the premises.
(vii) Smt. Ramkubai since deceased by L.Rs and Ors. v. Hajarimal Dhokalchand Chandak and Ors. (7), wherein it was held that son of the landlady was unemployed at the time of filling the suit, subsequently he started work of construction contractor, he cannot be expected to remain unemployed till suit is finally decided and his taking up contractor's business in- mean while does not militate against his intention to start family business.
(viii) Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkune and Anr. (8), wherein it was held that genuine requirement does not mean dire need of the landlord and similar view was taken in (ix) Raghunath G. Panhale (dead) by LRs. v. Chaganlal Sundarji and Co. (9).
(x) Neelkantan and Ors. v. Mallika Begum (10), wherein it was held that it is well settled that the High Courts while considering the matter in exercise of its jurisdiction in Second Appeal or civil Revision would not reverse the finding of fact as recorded by the Courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view. (xi). Similar view was taken in Bondar Singh and Ors. v. Nihal Singh and Ors. (11). Per Contra learned counsel for the defendants supported the findings of the first Appellate Court on the grounds that in case the plaintiff required the suit shop in the year 1976 as stated in Ex. 15, then why he did not take any step for eviction till filling the present suit in the year 1982 and this very fact goes to show that he did not require this shop at all and further it shows the malafide intention of the plaintiff. It was also submitted that it is the specific case of the plaintiff that he requires this shop to start oil mill, but in view of the size of the present shop it is not suitable for such a business and further plaintiffs son has already started business of a different nature and thus the requirement does not exist any more. It was also submitted that the present suit by the plaintiff was filed only after when the defendants filed a suit for fixation of standard rent and it shows that the plaintiff's aim was to enhance the rent and thus there is no ground to interfere with the finding arrived at by the first Appellate Court after appreciation of the evidence and the Court can lake into consideration the subsequent events also. He placed reliance upon following judgments :
(i) Vishwasrao Dadasaheb v. Shankarrao D. Kalyankar, (12), (it) Gurdev Singh v. Surjit Kumar Alias Jit and Anr. (13), (iii) Om Prakash Gupta v. Ranbir B. Goyal (14), In all these three judgments the Hon'ble Supreme Court held that in matters of eviction, the the Court held that in matters of eviction, the Court may take into consideration events occurring after the filling of eviction suit.
(iv) S.J. Ebenezer v. Velayudhan and Ors. (15), it was held by the Hon'ble Supreme Court that bona fide requirement of the landlord should be objectively tested and cannot be based on mere desire of landlord. Similar view was taken in following three judgments :-
(v) Bhagirath v. Ram Prasad and Anr. (16), (vi) Porwal and Sons v. Amanulla Khan Mohamad Khan (17), (vii) Parasram and Ors. v. Damadilal and Ors. (18).
(viii) Hamida and Ors. v. Md. Khalil (19), where in it was held that where the first Appellate Court has reached findings of fact based on evidence on record, the High Court in second appeal would not be justified in taking a different view merely on the basis of re-appreciation of such evidence without framing a substantial question of law, (ix) Similar view was taken in Dr. Ranbir Singh v. Asharfilal (20).
10. I have considered the rival submissions in the light of the judgments referred hereinabove. In Neelkantan & Other's case (supra) the Hon'ble Apex Court held that it is well settled that the High Courts would not reverse the finding of fact as recorded by the courts below, but it is not absolute proposition and in case where such finding of fact is recorded without any legal evidence or on misreading of evidence or suffers from legal infirmity, it would be open for the High Court to set aside such finding and take a different view. In Hamida & Other's case (supra) also the Supreme Court held that a different view by the High Court in second appeal would not be justified only on the basis of re-appreciation of evidence without framing a substantial question of law. In this instant appeal substantial question of law was framed that as to whether the finding of the first Appellate Court is perverse and against the law. On a careful consideration, the finding of the first Appellate Court on the issue of reasonable and bona fide requirement of the plaintiff has to be set aside as the finding of the first Appellate Court is recorded without any legal evidence and further it has misread the evidence which has materially prejudiced the case of the plaintiff. It is the case of the plaintiff that the shop in question is required by him for his own use and for his son. It was pleaded that the plaintiff is doing a job of Munshi of an advocate and now two courts have been established at Hair resulting into reduction of case work in the court at Bayana and second ground for his need is, that he has got cataract in his eyes and thus he is unable to work as Munshi. Requirement for his elder son was pleaded that he has completed his studies, he stands married and thus both father and son would establish a flour and oil mill in the suit shop. It was also pleaded that the defendants have got their own shop in Chhota Bazar at Bayana. Trial court having considered the entire evidence-oral and documentary came to the findings that execution of Ex. 15 has been proved and it shows the admission of the defendants with regard to requirement of this shop by the plaintiff and further admission that the defendants would shift in their own shop situated in Chhota Bazar, Teli Pada, Bayana; that the statement of the plaintiff is corroborated by P.W. 5 Nemi Chand advocate; that on account of two new courts at another place Bair, the case work has been reduced at Bayana; that the Plaintiff has developed catract in his eyes; that Vishnu Kumar elder son of the plaintiff is unemployed. P.W. 8 Vishnu Kumar was also examined and he supported the version of his father i.e. plaintiff. Learned trial court also relied upon the statement of D.W. 8 Shankar Lal who stated that Vishnu Kumar is doing no work. It was also held by the trial court that keeping in view the size of the shop which is 23 x 14', Partial eviction is not possible. First Appellate Court reversed the findings of the trial court on this issue on the ground that no medical officer was examined to prove that the plaintiff has developed catract in his eyes and prescription Ex. 18 does not disclose any such disease. It was also held that the plaintiff and his son have got no experience for running oil and flour mill and they did not take any step to start such business; that plaintiff's requirement arose in year 1976 but he did not take any step for eviction till filing the present suit; that the fact of the establishing a flour and oil mill is not mentioned in Ex. 15; that execution of Ex. 15 is not proved; that Ex. 15 indicates that the plaintiff's intention was to enhance the rent; that the plaintiff was doing the job of Munshi for last he would start other business. The learned first Appellate Court also took into view the subsequent events of camp court f Additional District Judge at Bayana and that P.W. 5 Nemichand Advocate restarted his practise there and that Vishnu Kumar elder son of the plaintiff has already started other business in a rented shop.
11. A careful perusal of entire evidence goes to show that execution of Ex. 15 was well proved. P.W. 1 Badu Lal stated that he placed his requirement before the defendants, they executed Ex. 15 on 1/7/1978 and it was singed by the defendant Lilli Ram in his presence. Ex. 15 was also signed by two witnesses Mohan Lal and Ramesh who put their signatures in their presence and it was read over to the defendants. Nothing adverse has come out in cross-examination with regard to execution of Ex. 15. P.W. 4 Mohan Lal corroborated the statement of the plaintiff with regard (o execution of Ex. 15 and he denied this suggestion that Ex. 15 was subsequently forged. It is important now to read the statement of the defendant Lilli Ram himself who admitted in examination-in-chief that Ex. 15 bears his signatures marked A to B but at that lime it was blank and thus according to Sh. Lilli Ram, his signatures were obtained on blank stamp paper. It is important to say here that in written statement no such plea was taken that the signatures of defendant Lilli Ram were obtained on blank paper, rather execution of any such document was denied in toto. In cross-examination also, he admitting his signatures were obtained on 1/7/1978 or not and he further pleaded ignorance as to whether when his signatures were obtained, Ex. 15 was already typed or not and he also pleaded ignorance about this fact that whether this document was read over to him or not and the witnesses also put their signatures in his presence. Keeping in view such statement of the defendant himself, in no manner of doubt it can be said that execution of Ex. 15 was not proved. The reasons given by the first Appellate ourt regarding non- execution of Ex. 15 are completely contrary to the evidence of both the parties as discussed hercinabove. The first Appellate court bases its decision with regard to Ex. 15 on the fact that stamp of Ex. 15 was purchased on 2/12/1974 and entries of purchase of the stamp Ex. A 74 go to show that in all four stamps of total value of Rs. 48/- were purchased and thus one stamp paper out of four was used by the plaintiff to prepare Ex. 15 and thus execution of Ex. 15 is not proved. These observations are completely devoid of merit to draw such conclusion in view of the positive evidence produced by the plaintiff and complete evasive answers given by the defendant Lilli Ram before the trial court and moreso, when there was no plea taken in the written statement that his signatures were obtained on a blank stamp paper. Learned counsel for the plaintiff rightly contended that in absence of pleading such evidence with regard to signatures on blank stamp paper was not even admissible. It is also significant to say here that on the one hand the learned first Appellate Court held that execution of Ex. 15 is not proved and on the other hand he placed reliance upon this document to arrive at a conclusion that the object of the plaintiff was to enhance the rent from Rs. 90 to Rs. 150 per month. Thus, the conclusion of the first Appellate Court with regard to Ex. 15 is completely contrary to the evidence available on the record. Although, the requirement of the plaintiff cannot be found to be proved on the around of admission as mentioned in Ex. 15, as the plaintiff has to prove by evidence that he requires the suit shop and his requirement was not only reasonable but bonafide also. As far as legal position is concerned, it is almost settled position of law that it should not be a mere desire of the landlord, he has to prove that he has got reasonable and bonafide requirement of the suit premises. It is also settled position of law that subsequent developments after filing the suit of the eviction can be taken into account but only when need of landlord is completely eclipsed as held by the Hon'ble Supreme Court in Gaya Prasad's case (supra). P.W. I Babu Lal was examined on 21/3/1983. He stated that he is working as Munshi for last 20 years and now catract is developed in his eyes and on that count it is difficult for him to continue to work as Munshi. It was also stared by him that since two new courts have been established at bair, judicial work has been reduced at Bayana and this statement finds corroboration from the statement of P.W. 5 Sh. Nemi Chand Advocate who stated before the trial court that he is practising since 1058 at Bayana and the plaintiff is doing the work of Munshi with him. Ex. 18 prescription slip clearly goes to show that the plaintiff has developed catract and thus the findings of the trial court with regard to requirement of the plaintiff was based on material evidence and the learned first Appellate Court has misread Ex. 18 and the evidence of the plaintiff was worngly disbelieved only on the ground that no medical officer was examined. Regarding requirement of son of the plaintiff, plaintiff stated that his son Vishnu Kumar is aged 23 years, he has completed his studies, he is married but unemployed and therefore, they want to establish an oil mill in the suit shop. P.W. 8 Vishnu Kumar corroborated the statement of his father Sh. Babu Lal and as stated hereinabove, D.W. 8 Shankar Lal himself admitted this fact that Sh. Vishnu Kumar is doing no job. The first Appellate Court reversed the said findings only on the ground of subsequent events, on 9/12/1987 an application under Order 41 Rule 2 & 3 read with Section 151 C.P.C. was filed on behalf of the respondents before first Appellate Court containing subsequent events. The first subsequent event is that for the last 8-10 months camp court of Additional District Judge has been established at Bayana. Sh. Nemi Chand advocate has restarted his practice at Bayana and the case work is increased and thus the earning of the plaintiff has also increased. Second subsequent event narrated is that Vishnu Kumar elder son of the plaintiff has started business of selling agricultural goods for last 10-15 days at Bayana and thus Sh. Vishnu Kumar is no more unemployed. Admitting subsequent events to be true, the question arises as to whether these subsequent events were sufficient enough to hold that the plaintiff does not require the suit shop any more and the only answer is negative. It is not always necessary that a person carrying on particular work/job is in bound to continue the same job/work till he become incapable of doing any work. As per the statement of the plaintiff, which was recorded in the year 1983, he was working as Munshi for about last 20 years. It was the case of the plaintiff that the case work at Bayana has been reduced and the second ground was that on account of eye problem he is not in a position to carry on the job of Munshi which requires study. Taking for a moment that the case work at present at Bayana has increased, it does not demolish the requirement of the plaintiff at all and the second ground of eye problem is not over if the plaintiff wants to do some other work, it cannot be said at all unreasonable in any manner. It is also unacceptable that since plaintiff's son started other business, his requirement as pleaded has come to an end. In para 6 of the application under Order 41 filed on 9/12/1987, it is stated that the plaintiff's son started a business of sale of agricultural goods which is 10 to 15 days prior to filing this application. It shows that Sh. Vishnu Kumar started this business in the last week of November, 1987 and thus suit was filed in the year 1982 and the matter is still pending in the court. Thus he cannot be supposed to sit idle till the suit of eviction stands finally decided. In view of the judgments of the Hon'ble Apex Court delivered in Padam Chand, Sukh Lal, Dhanna Lal and Rukmani's case (all supra), the prayer of eviction cannot be rejected. It is also significant to say that Sh. Vishnu Kumar has started this business in a rented shop and thus no such conclusion can be drawn that he has given up idea of doing his own business in the suit shop. Other submissions made by learned counsel for the defendants that the plaintiff has no money to start the business of oil and flour mill and that the size of the present shop is not suitable for carrying on such business, do not carry any substance. It was held by the Hon'ble Apex Court in G.S. Kapoor's case (supra) that the prayer of eviction cannot be rejected on the ground that the landlord did not have capacity to generate a fund of Rs. 10 lacs for running the proposed business. Further there is also no ground that the suit in shop is not suitable to carry on oil and flour mill. The objection that the plaintiff and his son having no experience to carry on any such business is also devoid of merit. It was also argued by learned counsel for the defendants that since Sh. Vishnu Kumar has started another business, it is evident that now he does not want to establish any oil or flour mill. But this argument has also got no force as it is in not ? even required that the landlord should indicate the precise nature of the business which he intends to start in the premises as also held by the Hon'ble Supreme Court in Raj Kumar Khaitan & Other's case (supra). Thus, the finding of the first Appellate Court on this aspect also is contrary to the evidence available on the record, rather the findings seem to be perverse.
12. As far as the point of partial eviction is concerned, it is evident from Ex. 15 that the defendants have got their own shop 10 'x 15' situated in Chhota Bazar, Teli Pada, Bayan and therefore, they can shift their business in their own shop and there is evidence available on the record that other shops are available at Bayana and the defendants can have other shop on rent. There is no such evidence to show at all that the plaintiff has got another shop at Bayana and his requirement has been proved to be reasonable and bona fide. Thus, in view of the above facts and circumstances, greater hardship would be caused to the plaintiff in comparison to the defendants, if the decree of eviction is not passed. The point of partial eviction was also considered by the trial court and it held that keeping in view the size of the shop, its partial eviction is not possible and this finding was not disturbed by the first Appellate Court. In view of the entire aforesaid discussion, the first substantial question of law is answered in affirmative.
13. Since learned counsel for the plaintiff did not press the second law point with regard to determination of standard rent by the first Appellate Court, the decision of the first Appellate Court determining the standard rent does not require any interference. Consequently, this appeal is partly allowed. The judgment and decree of the first Appellate Court with regard to eviction is set aside and the judgment of the trial court decreeing the suit of eviction is upheld.