Rajasthan High Court - Jaipur
Dr. Naraindas vs Rammanohar on 1 November, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 199/1999
Dr. Narain Das (deceased represented through legal
representatives)
1/1. Sh. Radha Mohan S/o Late Dr. Narain Das
1/2. Sh. Bhagwan Das S/o Late Dr. Narain Das
1/3. Sh. Prem Kant S/o Late Dr. Narain Das
1/4. Sh. Krishna Kant S/o Late Dr. Narain Das
All Residents of House No.314, Lal Ji Sand Ka Rasta, Chora
Rasta, Modi Khana, Jaipur.
1/5. Sh. Smt. Mohini Devi W/o Sh. Kailash Chand Badaya, R/o
Govident Nagar, Amer Road, Jaipur
1/6. Smt. Chitralekha W/o Sh. Hanuman Prasad Dusad, R/o
Vidhyadhar Nagar, Sector 9, Jaipur.
1/7. Smt. Prem Lata W/o Murli Manohar Badaya, R/o Baba
Harish Chand Marg, Chanpole Bazar, Jaipur.
1/8. Smt. Chandrakanta W/o Dr. B.L. Gupta, R/o Malviya Nagar,
Sector-7, Jaipur.
----Appellant-Plaintiffs
Versus
Ram Manohar adopted son of Nand Kishore (Since deceased)
now being represented through following legal representatives:-
1/1. Shakuntala Devi Khandelwal W/o Ram Manohar
Khandelwal, R/o Vidhyadhar Ka Rasta, Kagaji Bhawan, Jaipur
1/2. Mehul Khandelwal S/o Late Avdesh Khandelwal, grand son
of late Shri Ram Manohar Khandelwal, R/o Vidhyadhar Ka Rasta,
Kagaji Bhawan, Jaipur
----Respondent-Defendants
For Appellant(s) : Mr. Abhay Kumar Bhandari, Sr. Advocate assisted by Mr. Vaibhav Bhargava & Mr. Vikram Singh For Respondent(s) : None present HON'BLE MR. JUSTICE SUDESH BANSAL Judgment JUDGMENT RESERVED ON:- October 21st ,2022 JUDGMENT PRONOUNCED ON:- November 1st,2022 REPORTABLE
1. The instant civil second appeal under Section 100 of C.P.C. has been preferred by and on behalf of plaintiff-landlord-appellant assailing the judgment and decree dated 26.02.1999 passed in (Downloaded on 01/11/2022 at 08:41:58 PM) (2 of 19) [CSA-199/1999] Civil First No.24/1995 by the court of Additional District Judge No.2, Jaipur City, Jaipur whereby and whereunder while allowing the appeal, filed by respondent-tenant, the first appellate court has set aside the judgment and decree dated 30.03.1995 passed in Civil Suit No.6/1970 (22/1994) by the court of Additional Civil Judge (Jr. Division) No.1, Jaipur City, Jaipur decreeing the plaintiff's suit for eviction on the ground of bona fide and reasonable necessity of the rented shop for his son, after comparing comparative hardships between the landlord and the tenant and consequently, the civil suit for eviction has been dismissed.
2. Heard learned counsel for appellant at length, perused the judgments and record.
3. It appears from perusal of record that initially notices of this second appeal were issued to the respondent-defendant-tenant vide order dated 13.05.1999. Respondent-Defendant-Ram Manohar put in appearance through advocate. Thereafter, having heard learned counsel for both parties, Co-ordinate Bench of this Court vide order dated 1st September, 2006 admitted this appeal for consideration on the following substantial question of law:-
"Whether, the mere fact that the landlord who wanted a commercial premises for starting his own business can be said to have lost his necessity if after remaining unemployed for very long time say 11 years during the pendency of the suit joined service for his livelihood and in due course is confirmed in the service?"
4. Appellant-plaintiff Dr. Narain Das passed away during pendency of second appeal, hence his legal representatives came (Downloaded on 01/11/2022 at 08:41:58 PM) (3 of 19) [CSA-199/1999] on record and pursued this appeal. Thereafter, sole respondent- defendant-tenant Ram Manohar passed away on 28.06.2012. From the side of appellant, application was filed that deceased respondent Ram Manohar is survived by legal representatives of his wife Shakuntala Devi and grand son Mehul Khandelwal who may be substituted as his legal representatives in this second appeal to pursue proceedings of the appeal but it was averred that wife and grand son of deceased respondent never carrying on any business in the rented shop during the life time or up to death of respondent Ram Manohar and therefore, tenancy rights do not devolve upon the surviving legal heirs. Notices of the application to surviving legal representatives of deceased respondent were issued.
As per office report, notices were duly served but no one appeared on their behalf. Application for taking legal representatives of deceased respondent Ram Manohar was allowed vide order dated 07.09.2016 and respondent No.1/1 and 1/2 were substituted in his place. Again notices were issued to the substituted respondent No.1/1 and 1/2, which were served as per office report. Order dated 14.11.2017 goes to show that advocate who appeared for respondent-defendant Ram Manohar, put in appearance for his legal representatives as well and on the joint request of learned counsel for both parties, the matter was sent before the Mediation Center to explore possibility of amicable settlement through Mediator. Thereafter on 13.12.2017, learned counsel for respondents again sought time to explore possibility of amicable settlement but mediation proceedings remained unsuccessful. Thereafter, vide order dated 06.09.2018, in the (Downloaded on 01/11/2022 at 08:41:58 PM) (4 of 19) [CSA-199/1999] presence of learned counsel for both parties, application for early hearing of second appeal was allowed. On next date i.e. 08.10.2018, counsel appearing for respondents No.1/1 and 1/2 pleaded no instructions and thereafter, the court notices were ordered to be issued to respondents. As per office report, on 31.10.2018 notices served yet no one appeared on behalf of respondents.
5. It has also revealed from the record that during pendency of this second appeal during life time of original respondent-Ram Manohar, appellant filed an application under Order 41 Rule 27 CPC to take on record a copy of the order dated 26 th of August, 2003. This application was allowed after haring learned counsel for both parties vide order dated 21.12.2006 and the order in respect of taking voluntary retirement by the appellant No.1/1 Radha Mohan, for whom necessity, the present suit for eviction was filed, was taken on record. Respondent was given opportunity to file any document in rebuttal but no document is filed by the respondent to refute such subsequent fact.
6. Since no one is appearing for and on behalf of LRs of deceased respondent to contest this appeal, this Court, vide order dated 11.04.2022 asked the appellant to submit an affidavit furnishing the factual details about the present status and position of the rented shop as also about the rent paid in respect of rented shop. In compliance thereof, appellant Radha Mohan has submitted an additional affidavit dated 18.04.2022 on record. In the affidavit, it is stated that the rented shop was earlier been used by respondent-Ram Manohar but after his death, no legal representatives were seen doing any business, since his son (Downloaded on 01/11/2022 at 08:41:58 PM) (5 of 19) [CSA-199/1999] Avdesh Khandelwal pre-deceased to respondent. The shop remained closed for many years. Recently, it has been seen that occasionally some unknown persons used to do business of stationery and toys in the shop. It has been stated in the additional affidavit that respondents have not paid any rent of the rented shop since October, 2005.
7. Keeping in mind all afore-stated unrebutted facts available on record, in order to deal with the substantial question of law, which falls for consideration in the instant second appeal, following facts of the case as culled out from the record are need to be taken into consideration.
8. On 20.12.1969, the plaintiff-Dr. Narain Das filed a civil suit for eviction and recovery of arrears of rent against two defendants namely, Nand Kishore and smt. Suraj Devi. The civil suit was instituted under the provisions of Rajasthan Premises (Control of Rent and Eviction), Act of 1950 (hereafter referred to as 'the Act of 1950') on the ground of default, bona fide and reasonable necessity and subletting. It is stated in the suit that the shop in question bearing Municipal No.656 situated in Tripolia Bazar, Jaipur was taken on rent by defendant Nand Kishore and his brother Ram Kishore @Rs.35/- per month and rent note dated 16.10.1956 was executed in favour of plaintiff. It is stated that the tenant committed default in payment of rent, therefore, a suit for ejectment and rent was filed on 13.11.1961 but tenant deposited arrears of rent with interest therefore, the suit was dismissed. It is stated that tenant again committed default in payment of rent. Meanwhile, Ram Kishore died and defendant No.1 Nand Kishore alone continued to carry on business in the rented shop. In (Downloaded on 01/11/2022 at 08:41:58 PM) (6 of 19) [CSA-199/1999] respect of default, plaintiff pleaded that rent of the shop in question has not been paid since 05.03.1968. In respect of bona fide necessity, plaintiff pleaded that one of his son namely Radha Mohan has left his studies and is an unemployed, who wants to start his business of general merchandise and therefore, the plaintiff is in bona fide and reasonable required of the rented shop for his son. In respect of subletting, it was pleaded that the defendant No.1 part with possess the shop in question with one Ram Manohar. The plaintiff prayed for decree of ejectment and arrears of rent on all these grounds.
9. Defendants No.1 and 2 filed their separate written statements and denied pleadings in respect of default, bona fide and reasonable necessity and subletting. It was contended that Ram Manohar is adopted son of defendant No.1 Nand Kishore and he is not sub-tenant. Defendant also made an attempt to show that the shop was taken on rent for a partnership firm Shivnarain Rampratap but since rent note is in the personal names of defendant No.1 Nand Kishre and his brother Ram Kishore, therefore, such plea was later on found of no credence. During the course of trial, defendant No.1 Nand Kishore passed away, therefore, his wife was substituted as defendant No.1/1 but since his wife also died, thereafter, his adopted son Ram Manohar was substituted as defendant No.1/1/1 (respondent No.1 herein) who died during the second appeal and represented through respondents No.1/1 and 1/2. Later on defendant No.2 Smt. Suraj Devi too passed away and her name was deleted. Defendant No.1/1/1 Ram Manohar filed his own written statement and contested the eviction suit. Default in payment of rent was denied. (Downloaded on 01/11/2022 at 08:41:58 PM)
(7 of 19) [CSA-199/1999] Necessity of rented shop to plaintiff's son Radha Mohan was also denied. Subsequently, defendant got amended his written statement and stated that plaintiff's son Radha Mohan for whom the rented shop has been alleged to be bona fidely required, has got employment in Upbhokta Bhandar Co-operative Department and thus, he does not require the shop for his business.
10. The Trial Court, on the basis of pleadings of both parties, framed necessary issues and allowed both parties to adduce in support of their respective claims. Issue No.2 is of default, issue No.5, 6 and 8 are in respect of bona fide necessity, comparative hardships and partial eviction and issue No.7 is in respect of subletting.
Plaintiff produced himself as PW-1, Radha Mohan as PW-2 and other witness PW3 and PW-4 and also produced documents (Ex.1 to Ex.17) including documents to show that plaintiff's son Radha Mohan only got a temporary job in Upbhokta Bhandar Co- operative Department during the course of trial of eviction suit. In Rebuttal, defendant produced DW-1 to DW-7 and exhibited documents (Ex.A/1 to Ex./5).
11. The Additional Civil Judge (Jr. Division) No.1, Jaipur City, Jaipur vide its judgment dated 30.03.1995 decreed the plaintiff's suit and passed decree for eviction against the defendant-tenant on the ground of bona fide and reasonable necessity of the rented shop to the plaintiff-landlord for business of his son. The defendant-tenant was also held defaulter in payment of rent, but benefit of first default was extended. The issue of subletting was held against the plaintiff since the alleged sublettee Ram Manohar is none else but is proved to be an adopted son of original tenant (Downloaded on 01/11/2022 at 08:41:58 PM) (8 of 19) [CSA-199/1999] defendant No.1 Nand Kishore and who was also impleaded as defendant No.1/1/1 after death of original defendant-tenant and has been treated as tenant in rented shop.
The Trial Court dealt with the subsequent event of joining the job by the plaintiff's son Radha Mohan during the pendency of suit and observed that at the time of institution of the present civil suit on 20.12.1969 Radha Mohan was unemployed but he joined temporary service on Ad hoc basis initially for 80 days in Upbhokta Bhandar Co-operative Department on 14.12.1981 and his Ad hoc period was later on continued. The Trial Court, after appreciation of some of the judicial precedents, observed that the necessity of rented shop for plaintiff's son Radha Mohan does not come to an end or seized only due to joining a temporary job by him during pendency of suit. It was observed that the plaintiff's son Radha Mohan himself has deposed that he is interested in doing business only and he deposed that even at Upbhokta Bhandar, where he is doing temporary job, he has also got an experience in the business of general merchandise and his need of rented shop for doing business is persisting. The Trial Court categorically observed that considering the long drawn process of eviction proceedings, which has continued for about 25 years in the present suit, it may not be expected from the plaintiff's son to sit idle and not to do any work for his livelihood. Therefore, taking into account the respective evidence of both parties and the subsequent event, the Trial Court clearly observed that the necessity of rented shop to plaintiff's son Radha Mohan to start business of general merchandise does not come to an end, merely by joining a temporary job or even may be permanent during pendency of the (Downloaded on 01/11/2022 at 08:41:58 PM) (9 of 19) [CSA-199/1999] eviction proceedings and necessity was held to be bona fide and reasonable. The Trial Court, after deciding the issue of comparative hardships and partial eviction, decreed the suit for eviction on the ground of bona fide necessity vide judgment dated 30.03.1995.
12. Being aggrieved by the decree for eviction dated 30.03.1995 and findings of default, respondent-defendant Ram Manohar preferred first appeal their against. Before the First Appellate Court, plaintiff's son Radha Mohan deposed his undertaking on affidavit that he will resign from his job as soon as he will get the vacant possession of the rented shop and thus pursued his necessity of rented shop. However, the First Appellate Court, reversed the decree for eviction only for the reason that plaintiff's son Radha Mohan has joined services in Upbhokta Bhandar Co- operative Department and there he is in employment since last 18 years by the time of deciding the first appeal, therefore it cannot be said that he has a reasonable and bona fide necessity of the rented shop. The First Appellate Court also reversed findings of default and finally, vide judgment impugned dated 26.02.1999, set aside the decree for eviction and dismissed the plaintiff's suit for eviction.
13. In this second appeal, this Court is dealing with the substantial question of law related to the reversal of the decree for eviction by the First Appellate Court, passed by the Trial Court, on the ground of bona fide necessity, therefore, this Court is considering findings of the First Appellate Court in respect of issue No.5, 6 and 8, as whether they are perverse, contrary to settled proposition of law and are liable to be sustained or not? (Downloaded on 01/11/2022 at 08:41:58 PM)
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14. At the outset, it may be noticed that it is undisputed fact that the present suit for eviction in respect of the rented shop was instituted on 20.12.1969 for necessity of plaintiff's son Radha Mohan who at that point of time was not in any job but was said to be unemployed and he joined the job temporarily in Upbhokta Bhandar on 14.12.1981 during the course of trial of eviction suit. It has come on record in the evidence of parties that initially he was appointed on Ad hoc and temporary basis for 80 days and later on his Ad hoc period of service was extended time to time (Ex.7 to Ex.11). He himself deposed evidence as (PW-2) that he is in need of the rented shop to start business of grocery merchandise and he wants to do business only. It was stated that he joined the service temporarily for livelihood of his family and the salary amount falls short for his livelihood. There is evidence on record that any other vacant shop is available to plaintiff for business of his son Radha Mohan and as proceedings of eviction to get vacate the rented shop prolonged for years, he had to join job in the meanwhile. It is after 12 years of filing of the eviction suit, Radha Mohan joined service on 14.12.1981. Taking into consideration of such evidence and subsequent facts on record, the trial court passed decree for eviction on the ground of bona fide and reasonable necessity holding that joining temporary job during the course of trial, his necessity to the rented shop does not extinguish. Even it was observed that if due to continuation in service, he got the benefit of confirmation, this sole fact cannot mitigate his necessity of the rented shop. He has deposed evidence that he has liking for business and wants to increase his income as much as has also gained more experience of doing (Downloaded on 01/11/2022 at 08:41:58 PM) (11 of 19) [CSA-199/1999] business of general merchandise while doing his job at Upbhokta Bhandar.
15. The First Appellate Court has given weigh to the additional evidence that though Radha Mohan deposed his evidence that he has joined the service temporarily and he cannot sit idle during the course of proceedings of eviction but has to join the job for his livelihood, yet he has also admitted in cross-examination on the additional affidavit filed during the course of first appeal to the effect that now he is regular grade employee and his basic pay is Rs.4,700/- per month other than Dearness Allowance (DA) and House Rent Allowance (HRA). The First Appellate Court observed that Radha Mohan admitted in cross-examination that he is doing service in Upbhokta Bhandar since 25 years. Thus, the First Appellate Court, swayed away by this long period of service and brushed aside the other part of evidence and findings of the trial court to the effect that Radha Mohan has already stated on oath that he wants to do business only and would leave/resign from the job as soon as he will get the rented shop vacated for his business. The First Appellate Court, by its own treated the stand of Radha Mohan giving an undertaking to leave the job, a planned trick to seek eviction of the defendant from the rented shop. The First Appellate Court by its own assume that once the service of Radha Mohan has been permanent, his need to do job may not be held to be bona fide and reasonable. The First Appellate Court has erred in not pondering over to the evidence and fact that Radha Mohan joined service after remaining unemployed for 11 years even after filing of the suit. Further it is the sole decision of the landlord which would prevail in respect of choosing his livelihood. (Downloaded on 01/11/2022 at 08:41:58 PM)
(12 of 19) [CSA-199/1999] When Radha Mohan has deposed that he wants to do business only and has joined the job temporarily just to earn his livelihood and would leave the job after getting vacation of the vacant shop and start his business, the First Appellate Court should not have throbbed its own decision over the decision/desire of the landlord to do the business. It is trite law that landlord is the best judge of his need. The First Appellate Court has also erred in not taking into consideration the evidence on record that Radha Mohan (PW-2) opened a shop of general merchandise in Maniharo Ka Rasta and carried on business therein for six months, later on he could not run that shop and joined the service. This evidence/finding is rather in favour of the plaintiff to prove his intention to do the business. The First Appellate Court has misconstrued the true purported of the evidence and recorded perverse finding assuming that Radha Mohan has no intention to do business. Such finding of First Appellate Court is contrary to the evidence on record and are based on surmises and conjectures by drawing an assumption of its own. During the course of this second appeal, it has come on record that Radha Mohan has availed Voluntary Retirement Scheme (VRS) on 31.08.2003 and order to this effect dated 26.08.2003, accepting his VRS has already been taken on record which is marked as (Annexure-A/1). This additional evidence was taken on record, vide order dated 21.12.2006, after hearing learned counsel for respondent-tenant and opportunity to the tenant was also accorded by this Court to produce any evidence/document in rebuttal but no evidence in rebuttal to deny/dispute the factum of taking the VRS by Radha Mohan has been placed on record. This (Downloaded on 01/11/2022 at 08:41:58 PM) (13 of 19) [CSA-199/1999] Court is not oblivious to the fact that the plaintiff Dr. Narain Das had filed his affidavit dated 30.07.1998, later on Dr. Narain Das as well as Radha Mohan both furnished undertaking on 12.02.1999 before the First Appellate Court showing intention to resign from service as soon as they will get the possession of rented shop. It has also been held as per evidence on record that the landlord did not want to enhance the rent and there is no oblique motive of the landlord to file eviction suit. By the Additional evidence, the need and intention of the plaintiff's son to do business in the rented shop rather stands strengthen. It is no more res integra that the landlord is the best judge of his need and neither the tenant nor the Court may/should dictate the landlord or force to landlord to adjust or compromise with his need. It has also come on record that the landlord has no alternative shop. It is clear position as emerges in the present suit that though the plaintiff's son Radha Mohan was unemployed at the time of institution of suit and his need for the rented shop was bona fide and reasonable at that point of time. The eviction proceedings went prolonged for years and now about 50 years have lapsed and after 11-12 years after filing of eviction suit, if Radha Mohan joined any job in Upbhoka Bhandar for his livelihood, his necessity for the rented shop should not have been treated as abolished more so, when he deposed his desire/wish to do the business and not to continue with the service rather furnished undertaking to leave/resign from service on vacation of the rented shop. It is not the requirement of law that during pendency of eviction proceedings, landlord/the person for whose necessity is alleged should not do any job/business or employment for his livelihood in the interregnum period. Now it is (Downloaded on 01/11/2022 at 08:41:58 PM) (14 of 19) [CSA-199/1999] clear that Radha Mohan has resigned from his job. It may be noticed that the First Appellate Court too has nowhere held that the need of the rented shop to Radha Mohan was not bona fide and reasonable at the time of the institution of the suit but the First Appellate Court, swayed away by the fact of joining the job during the trial of suit and by continuation in job for 25 years and only on such account the First Appellate Court held that the necessity of the rented shop for Radha Mohan has come to an end and finished. Such approach of the First Appellate Court is not correct and is not liable to be countenanced, rather is against the material on record as well as contrary to the proposition of law.
16. In case of Padam Chand Vs. Narbada Bai reported in [(1986) RLR 859], plaintiff filed eviction suit in the year 1971 for bona fide and reasonable necessity of the rented shop for carrying on business by his son but during pendency of suit, plaintiff died and his son was employed in a cement factory, where he was made permanent. Therefore, it was argued from the side of tenant that only need as disclosed in the plaint having been fulfilled and the landlord cannot be said to have any reasonable or bona fide necessity. This Court declined to accept the contention of tenant and observed that merely because plaintiff's son got a job in cement factory and had joined the service, it cannot be said that he has given up the idea of doing his business in the suit premises. The suit had been pending since 1971 and at the time of Judgment in 1986, about 15 years have lapsed, therefore it was not accepted that a person who wants to start his business in the suit premises should sit idle for all the time to come and should not accept any job so as to meet his ends and only wait for (Downloaded on 01/11/2022 at 08:41:58 PM) (15 of 19) [CSA-199/1999] ultimate result of the litigation. The ratio squarely apply to facts of the present case.
17. In case of Gaya Prasad vs. Pradeep Srivastava [2001 (2) SCC 604], the Hon'ble Supreme Court held that crucial date for deciding the bona fides of the requirement of the landlord is the date of his application for eviction and the subsequent events cannot eclipse the said bona fide requirement, unless the subsequent event overshadows the requirement of landlord. It was observed by the Hon'ble Supreme Court that it was unfortunate situation that the litigation proceed in long process. In that case, litigation proceeded 23 years and during this period, it is not expected from the landlord or his son to remain idle without doing any work lest, joining any new assignment or starting any new work as that would be at the peril of fore-fitting the bona fide requirement of the landlord. If the subsequent events are insufficient to overshadows bona fide the need, the necessity pleaded and proved by the landlord does not come to an end and eclipse. It is a stark reality that longer is the life of litigation, the more would be the number of developments sprouting up during the long interregnum. The facts of present case are more or less similar and need for rented shop is not overshadowed by joining job by plaintiff's son interregnum.
18. In case of Hukum Chandra (Dead) through LRs Vs. Nemi Chand Jain [2019(13)SCC 363], the Hon'ble Supreme Court after considering umpteen number of previous judgments, expounded the judicial precedent reiterating that rights of parties stand crystallized on the date of institution of the suit. However, in appropriate cases, court can take note of all the subsequent (Downloaded on 01/11/2022 at 08:41:58 PM) (16 of 19) [CSA-199/1999] events. In that case, the Hon'ble Supreme Court affirmed the bona fide requirement of landlord and the event that landlord's son for whom eviction of suit premises was sought, became gainfully employee after filing of the suit is held to be irrelevant factor for adjudicating the bona fide requirement of the landlord.
19. Apart from afore-referred judgments, there are umpteen number of judgments where a proposition of law has been settled that in the dispute between the landlord and the tenant more particularly, on the ground of bona fide necessity, the subsequent events unless and until do not eclipse the necessity completely, are not required to give weigh to decline the necessity which exists at the time of institution of the eviction suit. Reference of some judgments in case of Ramesh Kumar Vs. Kesho Ram [1992 Supp (2) SCC 623], Jashwant Raj and Ors. Vs. Bata India Limited [1997(1)RLW 322], Radhe Shyam Vs. Kanhaiya Lal [1988(1)RLR 225], Santosh Kumar Jain Vs. Shambhulal Krishna Kumar Suhane [AIR (1993) MP 46], Seshambal (Dead) through LR's Vs. Chelur Corporation Chelur Building and Ors. [2010 (3) SCC 470] may be given.
20. Having considered the proposition of law in respect of the ground of bona fide and reasonable necessity, in the litigation between the landlord and tenant, this Court is of unequivocal opinion that in the case at hand, the First Appellate Court has grossly erred in setting aside the decree of eviction passed by the trial court on the ground of bona fide and reasonable necessity of suit shop for plaintiff's son Radha Mohan. The subsequent event of joining the job by Radha Mohan, after 11 years of the institution of eviction suit, during the course of eviction proceedings that too (Downloaded on 01/11/2022 at 08:41:58 PM) (17 of 19) [CSA-199/1999] only for the purpose of earning his livelihood has wrongly been assumed as eclipse/end of his necessity for the rented shop by overlooking to the evidence on record that he himself has led evidence that he intends to carry on business only and has joined the job temporarily as much as would leave the job, as soon as would get the vacant possession of the rented shop. During the course of second appeal, Radha Mohan has also tendered his VRS and his VRS has been accepted. Therefore, decree for eviction passed by trial court is required to be restored.
21. In case of Damodar lal Vs Sohan Devi and Ors. [2016 (3) SCC 78], the Hon'ble Supreme Court while dealing a case of eviction on the ground of material alternation in the rented premises, observed that interference with findings of fact of the court below by the High Court in second appeal is not permissible unless such findings are based on no evidence or are perverse. The criteria to determine as to whether finding(s) is concerned are perverse or not, it was observed that the wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. The safest approach on perversity is the classic approach on reasonable man's inference on facts. To him, if the conclusion on facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. In recent judgment of Hon'ble Supreme Court delivered in case of C. Doddanarayana Reddy (Dead) by LR's and Ors. Vs. C. Jayarama Reddy (dead) by LR's and Ors [2020 (4) SCC 659], in respect of jurisdiction of High Court to interfere with the findings of fact, while exercising its jurisdiction under Section 100 CPC, it has been held that interference in the (Downloaded on 01/11/2022 at 08:41:58 PM) (18 of 19) [CSA-199/1999] fact finding by the High Court may not be said to be erred when the finding recorded by the court below is based upon any misreading of material evidence or is recorded against the settled proposition of law or when any judge acting judicially and reasonably could not have reached such a finding.
22. Appreciating the finding of fact recorded by the First Appellate Court reversing the finding of trial court on the issue of bona fide necessity, it can safely be held that the First Appellate Court has not only misread/ignored the evidence on record but has recorded a finding contrary to the settled proposition of law as set out by the Hon'ble Supreme Court and High Court in umpteen number of cases in respect of bona fide necessity as discussed hereinabove and overall the finding of First Appellate Court is perverse and unsustainable in the eye of law.
23. Having discussed the factual and legal aspect, the substantial question of law is answered affirmative in favour of appellant and it is held that merely by joining a job by the plaintiff's son during the course of eviction proceedings to earn his livelihood, his necessity for the rented shop may not be held as eclipse/lost.
24. Before parting with the judgment, it may be observed that no substantial question of law in respect of reversing the finding of fact on the issue of default has been framed. The counsel for appellant during course of arguments has not given much emphasis on his application filed to the effect that after the death of original respondent-defendant Ram Manohar, tenancy rights do not devolve upon his surviving legal representatives, therefore, this Court is refraining itself from passing any finding on such issues.
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25. As a result, the instant second appeal succeeds and is hereby allowed. The impugned judgment and decree dated 26.02.1999 passed in Civil First Appeal No.24/1995 by the court of Additional District Judge No.2, Jaipur City, Jaipur is hereby set aside and the judgment and decree for eviction and arrears of rent dated 30.03.1995 passed in Civil Suit No.6/1970 (22/1994) by the court of Additional Civil Judge (Jr. Division) No.1, Jaipur City, Jaipur is restored. The appellant would be entitled to execute the decree for eviction after expiry of two months from today. No costs.
26. Record be sent back.
(SUDESH BANSAL),J TN (Downloaded on 01/11/2022 at 08:41:58 PM) Powered by TCPDF (www.tcpdf.org)