Rajasthan High Court - Jaipur
Ganesh Narain vs Kanhiya Lal & Ors on 27 June, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T S. B. CIVIL SECOND APPEAL No.392/2000. : : Legal Representatives of Ganesh Narayna Vs. Legal Representatives of Kanahiya Lal & Anr. : : Date of Order : 27.6.2012 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. R. K. Agarwal, Sr. Advocate with Mr. Alok Chaturvedi for the appellant. Mr. A. K. Bhandari, Sr. Advocate with Mr. Vaibhav Bhargava for the respondent No.1. Mr. Poonam Chand, respondent No.2 present in person. BY THE COURT :
Reportable Heard learned counsel for the parties.
2. The plaintiff-appellant has preferred this civil second appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 27.7.2000 passed by the Additional District Judge No.9, Jaipur City, Jaipur in Civil Regular Appeal No.15/2000 whereby the learned Appellate Court by allowing the appeal filed by the defendant-respondent Shri Kanhaiya Lal reversed and set aside the judgment and decree dated 23.3.2000 passed by the trial Court i.e. Additional Civil Judge (SD) No.6, Jaipur City, Jaipur in Civil Suit No.22/1998 and as a consequence of that dismissed the suit for eviction filed by the plaintiff-appellant.
3. Brief relevant facts for the disposal of this appeal are that landlord-appellant Shri Ganesh Narain filed suit for eviction and for recovery of arrears of rent against the respondent-tenant Shri Kanhaiya Lal with the averment that initially the suit shop bearing No.343 was let out to the respondent by the mother of the appellant and after the death of the mother in a oral partition between him and his brother respondent Shri Poonam Chand the suit shop came in the sole ownership of the appellant and on the asking of the appellant the tenant-respondent executed a rent note in his favour in the year 1976 and also admitted him his sole landlord. It was further averred that the suit shop is bonafide and reasonably required by him for his and his three sons' use and occupation as they have no other premises in which business of 'Ghee' and edible oil can be conducted. It was also averred that the appellant has retired from his service on 1.1.1988 and he is getting Rs.696/- only as a monthly pension whereas his son Rajkumar is doing business of preparing and selling tea in a small space in the stair case situated adjoining to the suit shop which space is infact a way to go and come from his residential house situated on the roof of the suit shop. It was also submitted that space in which his son is presently conducting his business of preparation and selling tea is not suitable and sufficient and the income from that business is insufficient to support the family members of the appellant. It was also submitted that other sons of the appellant are jobless as they have no accommodation to do any business or profession and the appellant and his sons intend to do 'kirana', 'ghee' and edible oil business in the suit shop. It was further averred that for the reasons stated in the plaint, it is clear that more hardship will be caused to the appellant in comparison to the respondent in case the decree is refused. The tenant-respondent Shri Kanhiya Lal filed written statement and the averments made in the plaint were denied and it was further averred by him that it is incorrect to say that the suit shop was taken by him on rent from the appellant alone on 1.10.1976 and in respect of that a valid rent note dated 19.9.1976 was executed by him. Admitting the fact that the suit shop was initially taken by him on rent from the mother of the appellant, it was further averred that after the death of the mother of both appellant and his brother respondent Shri Poonam Chand became his landlords and it is incorrect to say that partition took place between the two brothers and as a result thereof the suit shop has come into the sole share of the appellant. It was submitted that the plea of partition has been taken in order to get the suit shop vacated from the respondent as the appellant and his brother-respondent Shri Poonam Chand are conducting their business jointly in another shop bearing No.339 jointly owned by them and, therefore, the requirement shown for the suit shop is not bonafide and reasonable. It was further submitted that in the another shop owned by the brothers previously one Shri Kartar Singh was their tenant and a suit for eviction was filed by both the brothers against Shri Kartar Singh and on the basis of compromise arrived at between the them vacant possession of that shop was obtained by both the brothers and thereafter both of them are conducting their business jointly in it. It was also averred that son of appellant Shri Rajkumar is conducting his business of preparation and selling of tea in the premises indicated by the appellant for last about 10 years and the same is sufficient and suitable for the business conducted by Shri Rajkumar and he is earning Rs.300/- per day from this business. It was also averred that two other sons of the appellant are also doing their respective business as mentioned in the written statement and it is incorrect to say that they are jobless and the suit shop is also required for their business. It was further averred that the appellant owns a huge building in Johari Bazar having a entrance from 'Kundighar Bheruji Ka Rasta'. It was also averred that the building owned by the appellant can readily be used for commercial purpose as many other persons are also using the buildings having the same situation for commercial purpose. It was further averred that except the suit shop the respondent owns no other shop for his business which he is conducting for last more than 60 years and if decree for eviction is passed more hardship would be caused to him in comparison to the appellant as he and his 25 family members are dependent on the earnings made from the business conducted in the suit shop. In the additional pleas of the written statement, it was pleaded that the appellant alone is not entitled to file the present suit and it should have been filed by him and his brother-respondent Shri Poonam Chand by the reason that both of them are his landlords. It was prayed by the respondent that the suit filed by the appellant may be dismissed. The brother of the appellant Shri Poonam Chand filed written statement and almost all the averments made in the plaint were admitted by him and it was also stated that the oral partition has been effected between the two brothers and as a result of the same the suit shop has fallen in the share of the appellant whereas the other shop has come in the sole ownership of him in which he alone is conducting his business. On the basis of pleadings of the parties, necessary issues were framed by the trial Court. In support of their respective cases the appellant and tenant-respondent produced oral as well as documentary evidence and the learned trial Court after hearing both the parties decreed the suit filed by the appellant vide judgment and decree dated 23.3.2000. It was found by the Court below that the requirement shown by the appellant for the suit shop is bonafide and reasonable. It was held that the appellant owns no other shop other than the suit shop for his and his sons proposed business and the respondent has failed to prove that two other shops owned by the appellant are situated in the 'Nathmal Ji Ka Chowk'. It was also found by the trial Court that son of the appellant Shri Rajkumar cannot be compelled to do the business of preparation and selling of tea in a small and insufficient and unsuitable space situated near the suit shop whereas two other sons of the appellant are doing only temporary and seasonal business in absence of a shop to do a permanent business. Although, no clear finding was given by the Court in regard to the fact whether after the death of the mother oral partition was effected between the two brothers and the suit shop came into the share of the appellant and the respondent is tenant of appellant alone on the basis of rent note allegedly executed by him, but it was held that if a tenanted premises is owned by more than one landlord all or any of the landlords can file a suit for eviction for the need of all or of one or more of the landlords. Referring the order dated 5.12.1994 passed by the High Court in SB Civil Revision Petition No.359/1994, it was also observed by the trial Court that the tenant-respondent has no legal right to raise an objection regarding partition arrived between the two brothers. The issue of comparative hardship was also decided in favour of the appellant by holding that the appellant has no other premises for his and his sons proposed business whereas all sons of the tenant-respondent are independently well settled and are sufficiently earning for their family's support and he has presently no liability to support his family members. It was further held that the respondent has failed to prove this contention that the appellant owns two shops situated in 'Nathmal Ji Ka Chowk' and the same can be used by him for his and his sons proposed business. On the point of partial eviction from the suit shop, it was observed by the Court that both the parties have denied that by partial eviction their requirement can be satisfied. Dissatisfied with the judgment and decree passed by the trial Court, the tenant-respondent Shri Kanhaiya Lal filed appeal under Section 96 CPC before the First Appellate Court as Regular Civil Appeal No.15/2000 and the same was allowed vide impugned judgment and decree dated 27.7.2000. It was found by the First Appellate Court that from the pleadings and evidence available on record, it cannot be held that partition took place between the two brothers and the suit shop came in the share of the appellant alone and the appellant by concealing material facts with a malafide intention has alleged that as a result of the partition the suit shop came in his share alone so that the suit shop can be vacated from the respondent and this conduct of the appellant makes his requirement doubtful and malafide. It was also held that the appellant alone was not entitled to file the suit for eviction against the respondent. It was further found that it is clear that the other shop No.339 was got vacated by both the brothers and possession of the same was obtained by them jointly, but it has not been made clear by the appellant that the need shown by him has not been satisfied by conducting business in that shop. It was further found by the Appellate Court that the appellant has failed to deny the fact that he owned two other shops situated in 'Nathmal Ji Ka Chowk', which is also a commercial area and, therefore, alternative accommodation is available to him which can be used for the proposed business shown by him. It was also found that an another shop bearing No.346 is also available to the appellant, but the learned trial Court has not given any finding why that shop cannot be used by the appellant for his business. On the question of comparative hardship, it was held that as alternative accommodation is available to the appellant no hardship will be caused to him if the decree for eviction is refused. It was held that it cannot be expected from the respondent that he will produce title deeds in respect of other shops owned by the appellant. As a consequence, the suit filed by the appellant was dismissed. Dissatisfied with the reversing judgment and decree of the First Appellate Court, the landlord-appellant is before this Court by way of this civil second appeal. During the pendency of this appeal original landlord-appellant Shri Ganesh Narain died and in his place his heirs and legal representatives were brought on record as appellants. One of the sons and legal representatives Shri Ashok Kumar also died and in his place his heirs and legal representatives has been made party in the appeal. Similarly, original tenant-respondent Shri Kanhaiya Lal also died during the pendency of this appeal and in his place his son Shri Jugal Kishore has been made party as respondent.
4. After hearing the learned counsel for the landlord-appellant the appeal was admitted vide order dated 20.12.2000 on following substantial questions of law :
(i) Whether a temporary business to sustain himself would be an indication that the need for establishing a grocery shop by the plaintiff was not a bonafide or reasonable requirement and whether the entire approach of the Appellate Court below is absolutely wrong in law and perverse on facts ?
(ii) Whether the Appellate court below applied a wholly mistake test deciding the issue of reasonable and bonafide requirement by insisting upon extraordinary expertise for running a grocery shop and overlooking the material evidence that the plaintiff and his sons were capable of doing the business ?
(iii) Whether the Appellate court below ought to have judged the suitability of the suit premises from the landlord's point of view and considered that each independent adult member of the family is entitled to work for his independent existence and to start business of his own and the finding of the Appellate Court below in associating the plaintiff and his owns with the business run in the shop No.339 is wholly perverse and suffers from inherent defect ?
(iv) Whether in the facts and circumstances of the case, it was open to the dependent/tenant to dispute the family settlement between the plaintiff and his brother (respondent No.2) particularly in view of the order dt.5.12.1994 passed by this Hon'ble Court in SB Civil Revision Petition No.355/1994 (Ganesh Narain Vs. Kanhaiyalal) ?
(v) Whether the Appellate Court below on careful comparison and assessment of the related advantages and disadvantages of the plaintiff and the defendant ought to have decided the issue No.3 as regards comparative hardship in favour of the plaintiff and against the defendant ?
5. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law cited on behalf of the respective parties. My findings with reasons on each of the substantial questions of law are as below :
(I) The landlord came with a case that the suit shop is required for his and his three sons' use and occupation to conduct the business of grocery, 'desi ghee' and edible oil. It was also the case of the appellant that his son Shri Rajkumar is presently conducting his business of preparation and selling of tea in a small space situated adjacent to the suit shop in a stair case having entry to the residential house of the appellant situated on the roof of the suit shop and that space is not suitable and sufficient to continue the business. It was also the case of the appellant that the two other sons of the appellant are jobless. In the written statement although it was admitted by the tenant-respondent that son of appellant Shri Rajkumar is conducting his business of preparation and sale of tea for last about 10 years in the space as indicated by the appellant, but at the same time it was averred that that space is sufficient and suitable for the business, which Shri Rajkumar is presently doing in it. It was also averred by the respondent that other sons of the appellant are not jobless and they are doing their independent business as indicated in the written statement. From the evidence available on record, there is concurrent finding of the Courts below that Shri Rajkumar is presently doing the business of preparation and selling of tea in small space as indicated by the appellant in the plaint and the appellant as well as his other two sons are also assissting Shri Rajkumar in his business. It was also found that other sons of the appellant are doing seasonal business from time to time in the 'Varamda' situated in front of the suit shop. Although, from the pleadings and evidence available on record the First Appellate Court came to a finding that landlord-appellant Shri Ganesh Narain himself is conducting business jointly with his brother respondent Shri Poonam chand in the other shop bearing No.339, but there is no finding that his sons are also conducting business with their father and father's brother Shri Poonam Chand in the other shop. From the pleadings of the parties and the evidence available on record at the most it can be said that Shri Rajkumar is presently conducting his business in a small space and, therefore, it cannot be said to be suitable and sufficient to sustain and support him and his family members. Similarly, at the most it can be held that other sons of the appellant are only conducting temporary and seasonal business from time to time in a 'Barandwa' situated in front of the suit shop, but that also cannot be held to be sufficient and suitable. I am of the considered view that only by the reason that sons of appellant are presently conducting temporary and seasonal business to sustain their need the requirement shown for the suit shop cannot be said to be not bonafide and reasonable. A landlord and his family members cannot be compelled to conduct the existing business for all times to come only to accommodate the tenant. The entire approach of the Appellate Court in this regard is absolutely wrong in law and perverse on facts. This finding of the First Appellate Court is also wrong that it has not been explained by the appellant that when the other shop No.339 has been vacated in the year 1984 why the same has not been used by him to satisfy the need shown by him in the present case although the requirement presently shown was also in existence at that time. Although, from the evidence available on record it is clear that son of appellant Shri Rajkumar was doing his business of preparation and selling of tea in the same space as presently shown and he continued to conduct the same even after the vacation of the other shop, but merely by that reason it cannot be held that the requirement presently shown for the suit shop is not bonafide and reasonable. Subsequently also a landlord is entitled to claim vacation of his other tenanted shop and the fact of previous non-user of some other shop cannot prevent him to claim vacation of the other shop. Apart from that there is no evidence available on record that two other sons of the appellant were doing even temporary and seasonal business at the time when the other shop got vacated. It is the case of the tenant-respondent himself that in the other shop bearing No.339 appellant himself and his brother respondent Poonam Chand only are jointly conducting their business after it was vacated from its tenant and, therefore, it cannot be expected from the sons of the appellant to join their father and father's brother in the business conducted by them in the other shop. Each and every adult member of landlord's family has an independent right to do his own business to sustain the need of himself and his family members. The result of all this discussion is that decree for eviction from the suit shop cannot be refused only on the ground that sons of the appellant for whose requirement the suit has been filed are presently conducting some temporary and seasonal business elsewhere to sustain their need.
(II) If considered in the light of well settled legal position this finding of the First Appellate Court is also wholly illegal and perverse that the requirement shown by the appellant is not reasonable and bonafide by the reason that he and his sons admittedly do not have past experience for running a grocery shop. On the basis of evidence available on record and more particularly on admissions made by the sons of the appellant in their respective cross-examination to the effect that they have no past experience to conduct the proposed business of a grocery shop, 'ghee' and edible oil it was held by the Court that the requirement shown for the suit shop is not bonafide and reasonable. There is no material available on record that running a grocery shop requires an extraordinary expertise. Even it was not the case of the tenant-respondent that the requirement shown for the suit shop is not bonafide and reasonable by the reason that running of grocery shop requires extraordinary expertise and past experience and the appellant and his sons do not have the same. Hon'ble Supreme Court in many cases has held that if a landlord seeks eviction of his tenant on the ground of bonafide requirement of starting business, he need not establish that he possesses the past experience and know how necessary for doing the business. If a person wants to start new business of his own, it may be to his own advantage if he acquires experience in that line but lack of past experience cannot be a ground to hold the requirement shown by the landlord not to be bonafide and reasonable. Apart from that in the present case, it cannot be said that the appellant and his sons have no past experience to do any business. Even according to the respondent, the appellant himself is doing same business jointly with his brother in the other shop while all sons of the appellant are doing temporary and seasonal business from time to time as already indicated. Accordingly, it is held that the First Appellate Court adopted a wholly mistaken test in deciding the issue of bonafide and reasonable requirement against the appellant by insisting upon extraordinary expertise and past experience on the part of the appellant and his sons for running a grocery shop overlooking the material evidence that they were capable of doing the business.
(III) Looking to the facts and circumstances of the present case, it was necessary for the First Appellate Court to have judged the suitability of the suit shop from the appellant's point of view and consider that each independent adult member of the family is entitled to work for his independent existence and to start business of his own and the finding of the Appellate Court in associating the appellant and his sons with the business run in the other shop is wholly perverse and suffers from a inherent defect. As already stated the requirement was shown not only for the landlord-appellant but also for his three adult sons. From the findings arrived at by the First Appellate Court at the most it can be said that after the vacation of the other shop bearing No.339 the appellant himself was conducting business jointly with his brother-respondent Shri Poonam Chand, but that does not mean that the requirement shown for the sons of the appellant is also not sustainable. It is well settled that if the landlord or any member of his family is presently doing some business, but any other family member is required to do his own independent and separate business and for the same tenanted shop is required to be vacated, the same cannot be refused only by the reason that the family member whose requirement is shown can join the business already conducting by the landlord or other family member and he need not to start his own independent and separate business. The legal position is also that if a family member of landlord is presently jointly doing his business with landlord himself or any other family member but now he has an intention to start his own independent and separate business he has an unfettered right to do so and the decree of eviction for tenanted shop cannot be refused by saying that he need not start his own independent and separate business and he must continue in the present business for all times to come. The well settled legal position is that the landlord is best judge of his requirement for business purpose and he has got complete freedom in the matter. Neither tenant nor court can advice the landlord how he should adjust himself and satisfy his requirement in some other way. In the present case, although, there is no finding to the effect that all the sons of the appellant or one or more of them are presently doing business jointly with their father and father's brother respondent Shri Poonam Chand, but even if for the sake of arguments it is admitted that all of them or any of them is presently doing business jointly in the other shop bearing No.339 even then the requirement shown for the suit shop cannot be denied as it is well settled position of law that the requirement shown for the tenanted premises is to be adjudged from the landlord's point of view and each adult family member of the landlord is entitled to work for his independent existence and to start business of his own. Accordingly, it is held that grave illegality and perversity has been committed by the Appellate Court in holding the requirement not to be bonafide and reasonable on the basis of the business running in the other shop.
(IV) As has already been stated the appellant came with a case that although the suit shop was initially let out to the respondent by his mother, but after death of the mother oral partition took place between the two brothers and the suit shop came into the sole ownership of the appellant and by executing rent note dated 19.9.1976 the respondent took the suit shop on rent from him alone w.e.f. 1.10.1976. The tenant-respondent disputed the averment made by the appellant and he specifically denied the fact that as a result of any such oral partition the appellant alone is owner and landlord of the suit shop. During the pendency of the suit an application was moved by the respondent under Order 14 Rule 5 CPC for framing of additional issues regarding the fact of ownership and landlordship of the appellant alone and the same was allowed by the trial Court. The order by which the application was allowed was challenged by the appellant before this Court by way of SB Civil Revision Petition No.355/1994 and by order dated 5.12.1994 the revision petition was allowed. It was held by this Court that in proceedings under the Rent Control Act, title of the property is not relevant and only relevant factor is as to who are the landlords and tenants. It was further held that even the genuineness of the family arrangement cannot be disputed in these proceedings because the other person who succeeded to the property on the death of the mother has been impleaded as defendant in the suit and he admits that there was a family partition. It was further held whether family partition is genuine or not would be of no challenge for decision of the suit because assuming that Poonam Chand is also a landlord, both are parties to the suit and necessity of one of the landlords or other grounds of eviction can also be established at the instance of one of the landlords because apparently the plaintiff is the landlord or one of the landlords. I am of the considered view that in the light of the observations made by this Court in the order dated 5.12.1994 and the well settled legal position prevailing in this regard the tenant-respondent was not entitled to dispute the existence and validity of the family partition allegedly arrived between the two brothers, but the First Appellate Court overlooking the observations and the prevailing well settled legal position doubted the bonafide and reasonability of the requirement shown by the appellant on the basis that contradictory pleadings and statements have been made by the appellant from time to time at his convenience regarding partition between the two brothers and he has also concealed material facts from the Court. The First Appellate Court also come to a wrong conclusion that it is respondent Shri Poonam Chand who appears to be sole owner and landlord of the suit shop although it is not even the case of the tenant-respondent that it is respondent Poonam Chand only who is his landlord. As already stated the case of the tenant-respondent has been only that both brothers are owner and landlord of the suit shop. Hon'ble Supreme Court in the case of Mohinder Prasad Jain Vs. Manohar Lal Jain reported in (2006) 2 SCC 724 has held that a suit filed by co-owner is maintainable in law and it is not necessary for the co-owner to show before initiating the eviction proceedings that he had taken option or consent of the other co-owners. However, in the event a co-owner objects to such eviction proceedings the same may be a relevant fact. It was further held that this principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed inspite of their disagreement. In the present case, even if it is admitted that both the brothers are co-owners and landlord of the suit shop the decree for eviction cannot be refused by the reason that one of the co-owners only has filed the suit. In the present case, the other co-owner Shri Poonam Chand was made a party as defendant-respondent and he by filing written statement admitted the averments made in the plaint. It is not the case of the tenant-respondent himself that at any point of time the other co-owner raised objection for filing the present suit against him for eviction. The trial Court in the light of well settled legal position rightly held that even the appellant alone is entitled to file the present suit, but the First Appellate Court without there being any pleading held that it appears that it is respondent Shri Poonam Chand who is sole owner and landlord of the suit shop and, therefore, the suit filed by the appellant is not maintainable. Accordingly, it is held that it was not open to the respondent to dispute the family settlement (partition) between the two brothers and, therefore, the finding of the First Appellate Court is illegal and perverse.
(V) In the facts and circumstances of the case, the finding of the First Appellate Court under Issue No.3 in respect of comparative hardship is also illegal and perverse. In this regard, it was pleaded by the appellant that he does not own any other shop for his and his son's use and occupation and if decree for eviction is not passed in comparison to the respondent he will suffer more hardship as the respondent owns many residential houses and shops of his own. It was also pleaded that the respondent is of sound financial condition and he can readily obtain alternative premises for his business whereas it was averred by the respondent that the appellant and his all sons are presently doing their own respective businesses as mentioned in the written statement and he also owns a huge building in Johari Bazar having a alternative way from the 'Rasta Kundigar Bheruji'. This averment of the appellant was denied that he has no other alternative accommodation for his use and occupation. It is pertinent to note that no averment was made by the respondent that the appellant owns another shop bearing No.346 situated in main 'Johari Bazar' and also two shops in the 'Nathmal Ji Ka Chowk'. The trial Court decided the issue of comparative hardship in favour of the landlord by finding that the respondent has failed to prove this contention that two shops are available to the appellant in the 'Nathmal Ji Ka Chowk' which can satisfy his requirement. It is pertinent to note that this fact was not considered and no finding either way was given by the trial Court whether another shop bearing No.446 is available to the appellant for his use and occupation. It was also held by the trial Court that no suitable alternative accommodation is available to the appellant for his and his sons use and occupation and the business presently doing by them is not sufficient and suitable whereas the respondent is conducting his business in the suit shop for last 60 years and his all sons are already well settled. The finding of the trial Court in respect of question of comparative hardship was reversed by the First Appellate Court mainly by the reason that the appellant has admitted in his cross-examination that shop No.346 is owned by him and it is not the case of the appellant that presently it is not available to him. It was also found by the First Appellate Court that from the evidence available on record, it is clear that two vacant shops are available to the appellant situated in the 'Nathmal Ji Ka Chowk' and that area being a commercial one and therefore suitable and sufficient alternative accommodation is available for the requirement shown by the appellant. It was also held by the Appellate Court that presently the business is also being conducted by the appellant alongwith his brother in Shop No.339 whereas the respondent has no other alternative presmises for his use and occupation.
I am of the view that none of the reasons by which the finding of the trial Court in respect of the issue of comparative hardship has been reversed by the Appellate Court is legally sustainable. So far as availability of shop No.346 is concerned, although in the last part of his cross-examination the appellant has admitted that a shop No.346 is owned by him but if considered in the light of entire pleadings and evidence available on record, it is clear that the appellant by mistake has admitted that a shop No.446 is also owned by him. In absence of specific pleading, respondent was not entitled to suggest in the cross-examination of the appellant that such shop is available to him. It is behind any understanding that despite availability of this shop to the appellant for his use and occupation respondent failed to take plea in the written statement although regarding availability of shop No.339 and residential building of the appellant for commercial use was specifically taken. It is well settled that an admission made by a party by mistake in pleading or evidence cannot bind him. The learned Appellate Court without considering the matter in a right perspective only on the admission made by the appellant at one place in his cross-examination concluded that this shop is also available to the appellant for his use and occupation. It is pertinent to note that no suggestion was made in the cross-examination of other witnesses of the appellant regarding the ownership and availability of this shop and none of the witnesses of the respondent including himself did utter a word even in examination-in-chief regarding ownership and availability of the same to the appellant. So far as availability of two shops situated in the 'Nathmal Ji Ka Chowk' to the appellant is concerned, again no specific plea was taken in the written statement that such shops are also available to the appellant for his use and occupation. I am of the considered view that in absence of specific plea in respect of availability of these two shops the respondent was not entitled to lead evidence in this regard and the Court was also not entitled to consider the same. It is well settled legal position that in absence of specific pleadings, no amount of evidence can be considered by the Court. It is pertinent to note that no suggestion in cross-examination was made to the appellant and his witnesses in respect of the availability of these shops and it is for the first time during the evidence of the appellant and his witnesses it was stated that these shops are also owned by the appellant and they are available for his use and occupation. It is well settled position of law that availability of suitable alternative accommodation to the landlord is very relevant to decide the issue of reasonable and bonafide necessity as well as the comparative hardship and, therefore, it is necessary for the tenant to specifically plead regarding availability of such alternative accommodation to the landlord. In absence of specific pleadings, it cannot be expected from the landlord to controvert the same by producing evidence. The well settled legal position in this regard is that if it is found that landlord has some other vacant premises in his possession that by itself would not be sufficient to negative the landlord's requirement shown for the tenanted premises, but in such a situation it is expected from the landlord to establish that the premises which is vacant is not sufficient and suitable for the purpose for which he requires the tenanted premises. Whether the vacant premises available to the landlord is sufficient and suitable for his requirement or not will depend upon the facts and circumstances of each case, but mere being in possession of a vacant premises cannot negative the need shown by the landlord. Suitability of alternative accommodation available with the landlord has to be seen from convenience of the landlord and on the basis of totality of circumstances including profession, vocation, style of living, habits and background of the landlord. In the present case, as no pleadings were made regarding availability of alternative accommodation to the appellant in the form of shop No.346 situated in main Johari Bazar and two other shops in 'Nathmal Ji Ka Chowk', there was no occasion with the appellant to negative and controvert the facts brought by the respondent for the first time during his evidence and to show that infact no such alternative accommodation is available to him or even if such accommodation is available the same is not sufficient and suitable to satisfy the requirement shown for the suit shop. The First Appellate Court only on the basis of evidence produced by the respondent during trial, has wrongly held that alternative and suitable accommodation in the form of two shops is also available to the appellant. So far as shop No.339 is concerned, although in view of the finding of the Appellate Court now it cannot be denied that this shop is available to the appellant for his business and presently business is being jointly conducted by him and his brother in it, but even then the issue of comparative hardship was liable to be decided in favour of the appellant by the reason that the requirement was shown not only for the appellant himself, but for his three adult sons also. There is no finding that sons of appellant or one or more of them are also conducting business in this shop. Although, it is a fact that all the sons of the appellants presently are doing one or other temporary and seasonal business from time to time since for a long time whereas the respondent is in use and occupation of the suit shop for past several years, but it is also a fact that the space available to them is wholly insufficient. There is no material on record indicating that even after the insititution of the present suit some serious efforts were made by the respondent to take any other shop on rent or otherwise for his use and occupation and in absence of the same the respondent cannot be allowed to contend that if decree for eviction is passed more hardship will be faced by him in comparison to the appellant. It is well settled position of law that if tenant makes no efforts to take alternative accommodation for his use and occupation despite institution of suit against him, the issue of comparative hardship is to be decided against him. It is also well settled that this issue cannot be decided in favour of the tenant only by the reason that he for a long time is in use and occupation of the tenanted premises and he has established a goodwill and if he is evicted from the tenanted premises, he will suffer loss of business and a huge amount will be required to be paid as 'Pagdi' and rent for a new accommodation. The burden of proving greater hardship lies on the tenant. The fact that the tenant could have shifted to other premises or has missed the opportunity of availing occupation of other premises or is likely to part with possession over other premises where to his business can be or could have been shifted are all relevant factors for the purpose of decide the question of comparative hardship. In the case of Bega Begam Vs. Abdul Ahmed Khan reported in (1979) 1 SCC 273, it was observed by Hon'ble Supreme Court that It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of hardship, each party has to prove his relative advantages or dis-advantages and the entire onus cannot be thrown on the landlord to prove that lessor dis-advantages will be suffered by the tenant and they were remediable. The owner of property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord.
The result of all this discussions is that the reversing finding of the Appellate Court regarding issue of comparative hardship is also illegal and perverse requiring interference of this Court.
6. It was vehemently urged by the learned counsel for the respondent that in the present case the learned Appellate Court on the basis of evidence available on record after citing reasons has set aside the findings of fact arrived at by the trial Court on each and every point raised by the appellant in this appeal and there being no case of non-consideration of material evidence available on record or misreading thereof, none of the findings of the First Appellate Court can be said to be illegal or perverse requiring interference of this Court in this civil second appeal filed under Section 100 CPC. It was further submitted that it is not the law that interference by the High Court in findings of fact cannot be made only when there is concurrent findings of both the Courts below, but even if the First Appellate Court has reversed the findings of the trial Court and it is found that the same are based on evidence available on record there is no scope for the High Court to interfere in it. It was also submitted that the findings of fact cannot be set aside by the High Court in second appeal only by the reason that it is of opinion that some different view is possible to be taken by the Court from the one taken by the Court below. It was further submitted that the First Appellate Court on the basis of evidence available on record has correctly held that the requirement shown by the appellant for the suit shop is not bonafide and reasonable and if decree for eviction is passed more hardship will be caused to the respondent in comparison to the appellant as suitable and alternative accommodation is available to him. In support of his submissions, learned counsel for the respondent relied upon the cases of Ganpat Lal through LRs Vs. Kumari Santosh Trivedi & Ors. reported in 2005 (5) WLC (Raj.) 516, Deity Pattabhiramaswamy Vs. S. Hanymayya & Ors. reported in AIR 1959 SC 57, Gur Din Sah Vs. Badri & Ors. reported in AIR 1937 Oudh 165, Sital Chandra Kolley & Anr. Vs. Heirs of Mihilal Kolley & Ors. reported in AIR 1955 Calcutta 21, Mp Pyu Vs. K. C. Mitra reported in AIR 1928 Rangoon 303.
7. On the other hand, learned counsel for the appellant submitted that if the findings of fact have arrived at by both the Courts below or the Appellate Court by considering irrelevant facts or by not considering the material evidence available on record or misreading of the same, it gives rise to substantial question of law and High Court has jurisdiction to interfere in such findings of fact also. It was further submitted that if the Appellate Court does not advert to relevant circumstances of the case or misreads or misinterprets the evidence and the pleadings available on record overlooking the prevalent legal position interference can be made by the High Court even in second appeal filed under Section 100 CPC. It was further submitted that if First Appellate Court does not determine the relevant issues in a case on account of an erroneous approach resulting from misreading of provisions of law, by wrongful placing of burden of proof, the High Court would be within its jurisdiction in second appeal in recording findings of fact on such issues provided the evidence on record is sufficient. It was further submitted that in the present case the appeal was admitted and substantial questions of law were framed by this Court and, therefore, while considering each and every substantial question of law if the Court finds that interference is required even in findings of fact arrived at by the First Appellate Court it can do so. In support of his submissions, learned counsel for the appellant relied upon the cases of D. R. Rathna Murthy Vs. Ramappa reported in (2011) 1 SCC 158, Abdul Raheem Vs. Karnataka Electricity Board & Ors. reported in AIR 2008 SC 956, Surain Singh (Dead) By LRS & Ors. Vs. Mehenga (Dead) by LRS reported in (1996) 2 SCC 624, Leela Soni & Ors. Vs. Rajesh Goyal & Ors. reported in (2001) 7 SCC 494 and Shri Bhagwan Sharma Vs. Smt. Bani Ghosh reported in AIR 1993 SC 398.
8. In the case of D. R. Rathna Murthy (supra), it has been held by Hon'ble Supreme Court that the High Court can interfere with the findings of fact even in the second appeal provided the findings recorded by the Courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on the record or where the core issue is not decided. There is no absolute bar on the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances.
In the case of Abdul Raheem (supra), it was held by Hon'ble Supreme Court that there cannot be any doubt whatsoever that consideration of irrelevant facts and non-consideration of relevant facts would give rise to a substantial question of law. Reversal of a finding of fact arrived at by the First Appellate Court ignoring vital documents may also lead to a substantial question of law. It was further held that although a finding of fact can be interfered when it is perverse, but it is also trite that where the courts below have ignored the weight of preponderating circumstances and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in considering the matter and in coming to its own independent conclusion. The High Court shall also be entitled to opine that a substantial question of law arises for its consideration when material and relevant facts have been ignored and legal principles have not been applied in appreciating the evidence. Arriving at a decision, upon taking into consideration irrelevant factors, would also give rise to a substantial question of law. It may, however, be different that only on the same set of facts the higher court takes a different view. Even in a case where evidence is misread, the High Court would have power to interfere.
In the case of Surain Singh (supra) it was held that though normally the High Court might not have interfered with the finding recorded by the appellate court, but in view of the diverse views by the trial Court and the appellate court, the High Court was impelled to go into the question and recorded a finding. The material evidence and relevant circumstances were not adverted to by the first appellate court. The High Court, therefore, had done that exercise. It being a finding of fact, we do not find it a fit case for our further interference.
In the case of Leela Soni (supra) it was held by the Hon'ble Supreme Court that Section 103 CPC authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as the lower appellate court or by the lower appellate court; or (2) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Section 100 CPC.
9. If considered in the light of the well settled legal position, it cannot be said that this Court is not entitled to interfere in the reversing findings of fact arrived at by the First Appellate Court. The appeal was admitted by this Court after hearing the counsel for the appellant and as many as five substantial questions of law were framed and after appreciating the evidence available on record and in the light of the prevalent legal position each of them has already been considered and answered by this Court. Therefore, this contention of respondent is also liable to be rejected.
10. It was further submitted on behalf of the respondent that in a suit for eviction based on the ground of bonafide and reasonable necessity it is necessary for the trial Court to frame specific issue on the point of partial eviction. In the present case, although Issue No.5 was framed but the appellant led no evidence to show that any hardship will be caused to him if decree for partial eviction is passed or in the facts and circumstances of the case it is not possible to pass the decree for partial eviction as it will not satisfy the requirement of both the parties, but even then the learned trial Court decided that issue in favour of the appellant by holding that it is not possible to pass decree for partial eviction. It was further submitted that finding of the trial Court on the issue of partial eviction being based on no evidence, was liable to be set aside by the First Appellate Court, but that point was not considered and no finding either way was recorded by it. It was urged that the matter is required to be remanded back to the First Appellate Court for considering and deciding the question of partial eviction. It was further submitted that it is an admitted fact that the measurement of suit shop is 10' x 30' and the space already available to the appellant adjacent to the suit shop has a measurement of 2' x 3' and, therefore, if the suit shop is divided into two equal parts the portion available with the respondent will be of 5' x 30' which can satisfy his requirement whereas the appellant will also get portion of the same measurement with an additional space measuring 2' x 3' and looking to the nature of the business proposed to be conducted by the appellant, it will easily satisfy his requirement. It was prayed that if the Court comes to a conclusion that a decree for eviction is required to be passed then the proper course is that a decree for partial eviction be passed. In support of his submissions, learned counsel for the respondent relied upon the cases of Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada reported in (2003) 2 SCC 320 and Smt. Laxmi Bair Vs. Shri Bansi Lal & Ors. reported in 2009 (1) WLC (Raj.) 276.
11. On the other hand, it was submitted on behalf of the appellant that in the present matter specific issue in respect of the question of partial eviction from the suit shop was framed by the trial Court and on the basis of pleadings of the parties and evidence available on record the same was decided in favour of the appellant. It was also submitted that it is not the legal requirement that separate and independent evidence is adduced by the parties on the question of partial eviction and point can be decided by the Court on the basis of facts and circumstances of the case and more particularly considering the requirement shown by the landlord and user of it by the tenant and the measurement of it. In the present case, it has been observed by the trial Court that both the parties in their respective evidence has denied that their respective requirement can be satisfied if decree for partial eviction from the suit shop is passed. Apart from it, it has also been held that width of the suit shop is not such that it can be divided into two parts and, therefore, the decree for partial eviction is not possible. It was further submitted that the finding of fact arrived at by the trial Court cannot be said to be illegal or perverse requiring interference in any manner in this appeal only by the reason that the First Appellate Court has failed to give any finding either way on this point. According to the learned counsel absence of finding by the First Appellate Court is a clear indication of fact that the finding of the trial Court on the issue of partial eviction was not found to be interfered by the First Appellate Court. It was further submitted that even according to the respondent the measurement of suit shop is 10' x 30' (the width being 10') and the measurement of space available with Shri Rajkumar is only 2' x 3' and, therefore, in no circumstance decree for partial eviction can satisfy the requirement of both the parties. It was also submitted that it was always the case of the respondent that partial eviction cannot satisfy his requirement and, therefore, he cannot now be allowed to contend that even decree for partial eviction can satisfy his need. It was also submitted that business of grocery shop, 'ghee' and edible oil cannot be conveniently conducted in a shop having a width of 5' only in a main commercial center like Johari Bazar of Jaipur. According to the learned counsel the other space having a measurement of 2' X 3' is also of no help. In support is his submissions, learned counsel for the appellant relied upon the cases of Mohinuddin Vs. Smt. Sushila reported in 2004 (3) DNJ (Raj.) 1310, Girdhari Lal Vs. Smt. Kanta & Ors. reported in RLW 2000 (1) Raj. 306 and M/s Kerla State Coier Corporation Ltd. & Anr. Vs. Kewal Krishan Kumar & Anr. reported in AIR 1999 Raj. 124.
12. According to sub-section (2) of Section 14 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, in suit for eviction based on the ground of bonafide and reasonable necessity, if the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only. It is well settled that in a suit for eviction based on the ground of bonafide and reasonable requirement of the landlord, it is mandatory for the Court to consider and decide the question of partial eviction from the tenanted premises and if the Court fails to do so, the same tantamounts to illegality or perversity requiring interference by the higher court. In the present case, although no pleadings regarding partial eviction from the suit shop either way were taken by the parties, but the trial Court specifically framed Issue No.5 regarding it and a clear finding was also given on it to the effect that the decree for partial eviction is not possible. It is not the case of the respondent that the finding of the trial Court is against the material available on record or it has been arrived at without considering the evidence available or the misreading of the same. It is an admitted fact that although the depth of the suit shop is 30', but its width and front is of only 10'. Looking to the nature of the proposed business of the appellant as well as of the respondent presently conducting by him in the suit shop, it cannot be said that partition of the same in two parts can, without any inconvenience, satisfy the need of both the parties. It is not the requirement of law that in each and every case, the tenanted premises is required to be divided. The decree for partial eviction can be passed only when it is found by the Court that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the tenanted premises. In the present case, the space already available with Shri Rajkumar is of no help as admittedly the measurement of the same is only 2' x 3'. There is no reason to interfere in the finding of the trial Court on this point. It was never the case of the respondent before the Courts below that even eviction from a part of the suit shop will satisfy his requirement and therefore he cannot be allowed to contend the same for the first time in this second appeal. The legal position is that if the Court is satisfied that the ends of justice would be met if the tenant is not called upon to vacate the entire tenancy premises but only a part of it then the court may order partial eviction so that the requirement of the landlord is satisfied and the tenant is also not deprived of his running business activity. The duty is of the Court to consider and decide the question and the same can be discharged by taking into consideration such material as may be available on record even if no specific pleadings have been taken by the parties.
13. During the course of hearing of this appeal respondent No.2-Shri Poonam Chand appeared personally and submitted that no partition, oral or otherwise, took place between him and his brother appellant-Shri Ganesh Narain and he also has half share in the suit shop alongwith his brother and also landlord of the same. Therefore, he must be given opportunity to produce evidence to prove that infact no partition took place between the two brothers and the suit shop did not come in sole share and ownership of the appellant. It was further submitted by him that opportunity to produce evidence was never afforded to him by the Courts below. It was also submitted that only on the contention of the appellant and on the basis of suit filed by him the respondent cannot be evicted from the suit shop.
The submissions and the contentions made by the respondent No.2 at this stage of the proceedings are wholly un-tenable as he filed written statement admitting almost all the facts averred by the appellant in the plaint and more particularly the fact that after the death of their mother oral partition took place between him and his brother-appellant and the suit shop fell in the sole ownership and share of the appellant. The respondent also pleaded that another shop No.339 solely belongs to him and he alone is conducting business in it. It is pertinent to note that he never prayed before the trial Court that he may be given opportunity to produce evidence. As the averments made in the plaint were admitted by him, there was no occasion for the trial Court to afford opportunity to him to produce his evidence or for him also to produce evidence to contradict the submissions made by the appellant in the plaint. As already stated, the suit filed by the appellant was decreed by the learned trial Court and it was held by it that appellant is entitled to file suit for eviction against the tenant-respondent. The respondent No.2 did not challenge the judgment and decree of the trial Court by way of appeal under Section 96 CPC. Even before this Court no appeal was filed by him and only at the fag end of the contest he has appeared and made contentions as already referred. In these circumstances the submissions made by him are not legally tenable and are liable to be rejected outrightly. It appears to the Court that respondent No.2-Shri Poonam Chand as a result of some oblique motive towards his brother appellant and to derail the final disposal of this old matter without any legal basis has submitted as above. I am of the view that exemplary costs are to be imposed upon him. In the facts and circumstances of the case Rs.5,000/- are imposed as costs upon the respondent No.2-Shri Poonam Chand. A period of 30 days is granted to him to the deposit the same in the office of the Registrar General of this High Court. If he fails to deposit the costs within the time granted, the same shall be liable to recovered from him in accordance with law and the deposited/recovered costs shall be deposited in the office of the Rajasthan State Legal Services Authority, Jaipur.
14. The net result of all these discussions is that the findings of fact arrived at by the First Appellate Court are illegal and perverse requiring interference of this Court even in this second appeal filed under Section 100 CPC.
Consequently, the appeal filed by the plaintiff-appellant is allowed and the judgment and decree dated 27.7.2000 passed by the Additional District Judge No.9, Jaipur City, Jaipur in Civil Regular Appeal No.15/2000 is set aside and the judgment and decree dated 23.3.2000 passed by the trial Court i.e. Additional Civil Judge (SD) No.6, Jaipur City, Jaipur in Civil Suit No.22/1998 is restored and as a consequence of the same the suit filed by the plaintiff-appellant for eviction is decreed with costs throughout. A period of two months is granted to the tenant-respondent to vacate the suit shop and hand over the peaceful possession of the same to the landlord-appellant.
(PRASHANT KUMAR AGARWAL),J.
A.Arora/-
(Reserved).
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
AMIT ARORA JUNIOR PERSONAL ASSISTANT