Rajasthan High Court - Jaipur
Krishan Murarilal And Ors vs Madan Lal on 13 April, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 591/2003
1. Krishan Murarilal adopted son of Shri Bhajanlal R/o Station
Bajariya, Bayana, Distt. Bharatpur.
2. Shri Ram Son of Shri Manohar Lal, R/o Station Bajariya, Bayana,
Distt. Bharatpur.
3. Vijay Kumar son of Shri Manohar Lal, R/o Station Bajariya, Bayana,
Distt. Bharatpur.
4. Gokul Chand son of Shri Manohar Lal, R/o Station Bajariya, Bayana,
Distt. Bharatpur.
5. Munna @ Smt. Suman Daughter of Shri Manohar Lal, R/o Station
Bajariya, Bayana, dist.. Bharatpur; at present C/o Shri Jagdish Prasad
Vaish, Hari Industries, Bharatpur.
6. Smt. Narbada wife of Shri Manohar Lal r/o Station Bajariya,
Bayana, distt. Bharatpur (deceased).
----Defendant-Appellants
Versus
1. Madan Lal (Deceased)
1/1. Gulab Chand son of Late Shri Madan Lal, R/o Station Bajariya,
Bayana, Distt. Bharatpur.
1/2. Behari Lal Son of Late Shri Madan Lal, R/o 64/48m Kiran Path,
Mansrovar, Jaipur.
1/3. Smt. Bhagwan Devi wife of Shri Murari Lal, daughter of Late Shri
Madan Lal, R/o cloth Marchent, Bara Bazar (Cloth Market), Hindoncity,
Distt. Karauli.
1/4. Purshottam son of Late Shri Madan Lal (Deceased)
1/4/1. Smt. Maya Devi wife of late Shri. Purshottam, R/o Station
Bajariya, Bayana, Distt. Bharatpur.
1/4/2. Sunil Kumar son of Late Shri Purshottam, R/o Munsif
Magistrate & Civil Judge, Chomu, Distt. Jaipur
1/4/3. Vikas son of late Shri Purshottam, R/o Station Bajariya,
Bayana, Distt. Bharatpur.
1/4/4. Smt. Anjna Wife of Shri Girdhari lal Patwari, daughter of late
Shri Purshottam, R/o C/o Babulal Mandariya, Teacher, Behind Hospital,
Roop Colony, Hindoncity, Distt. Karauli.
1/4/5. Smt. Renu wife of Shri Ashok Kumar, daughter of late Shri
Purshottam, r/o C/o Shri Bhikam Chand Rasulpur Walen, Ganga
Mandir Colony, Roopbas, Distt. Bharatpur.
1/5. Manoj Kumar son of Late Shri. Uttam Chand, R/o 64/48, Kiran
Path, Mansarovar, Jaipur: C/o Clerk, Dy. Registrar Office (Adm.),
Rajasthan High Court, Jaipur Bench, Jaipur.
----Plaintiff-Respondents
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For Appellant(s) : Mr. M.M. Ranjan, Sr. Advocate assisted
by Mr. Rohan Agarwal
For Respondent(s) : Mr. Akash Gupta for
Mr. B.L. Agarwal
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
13/04/2022
1. Appellants-tenants have filed this second appeal assailing the judgment and decree for eviction dated 03.03.2001 passed in Civil Suit No. 45/1998 by Civil Judge (SD) Bayana, Bharatpur, which has been affirmed in the First Appeal 14/2001 vide judgment and decree dated 26.07.2003 passed by Additional District Judge No.1, Bayana (Bharatpur).
2. The rented premise is a shop in question situated at Railway Station, Bajariya, Bayana alleged to be in tenancy of the predecessors of defendants since 21st October, 1961. Appellants are successors of original tenant Sh. Bajanlal and Sh. Manoharlal. Respondents-landlords filed eviction suit on 21.02.1995 on the ground of default, bona fide and personal necessity and material alteration invoking the provisions of Section 13(1) of the Rajasthan Premise (Control of rent and Eviction) Act, 1950. It was alleged that defendants have neither paid nor tendered rent for the period from 06.06.1994 to 20.02.1995. The last paid rate of rent was Rs.150/- per month; the shop was purchased for the need of Sh. Purshotam, who is a married but unemployed person and wants to start a restaurant and rest-house in the rented shop. Defendant-tenants filed written statements.
3. Both parties adduced their evidence and after full fledged trial, the trial court passed the decree for eviction on the ground of bona fide and personal necessity on the ground of causing material alteration to the (Downloaded on 24/12/2022 at 06:59:34 PM) (3 of 9) [CSA-591/2003] rented shop. Though, the defendants-tenants were found defaulter in payment of rent, however, a benefit of first default was accorded. The trial court, on appreciation of evidence of both parties, found that Sh. Purshotam is not having any independent business and if he is helping in the joint business of family, it may not be observed that the shop is not required for starting of his own and independent business of restaurant and rest-house. According to the size and situation of the shop, the same was found suitable to be used for the purpose of restaurant and rest-house. Issues of comparative hardship and partial eviction, were also discussed independently and were decided in favour of plaintiffs-landlords. The trial court also found that the defendants have caused material alteration to the rented shop by raising a construction of pakka latrine without permission of the landlords.
4. Defendants-tenants filed the first appeal. Plaintiffs-landlords also filed cross-objections.
5. The first appellate court re-appreciated the evidence on record and affirmed the decree for eviction on the ground of bona fide necessity, however, the ground of material alteration was not found proved and findings of issue No.6 were reversed and decided against the plaintiffs-landlords. The findings on the issue of default, comparative hardship and partial eviction were affirmed. Cross- objections of the plaintiffs-landlords in relation to issue No.5-nuisance, were rejected. Finally, the first appellate court confirmed the defendants-tenants as first defaulter, giving benefit of first default, affirmed the decree for eviction on the ground of bona fide and personal necessity. The judgment of first appellate court shows that the first appellate court has discussed each and every issue independently taking into consideration the findings of trial court and decided the issues afresh. The first appellate court assigned its own reasoning to confirm the findings on the issue of default and bona fide necessity with (Downloaded on 24/12/2022 at 06:59:34 PM) (4 of 9) [CSA-591/2003] connecting issues of comparative hardship and partial eviction and finally, the decree for eviction passed on the ground of bona fide necessity of the rented shop was affirmed vide judgment dated 26.07.2003.
6. Appellants have preferred this second appeal, assailing the concurrent findings of fact on the ground of bona fide necessity.
7. This second appeal was admitted on the following substantial question of law:-
"Whether in facts and circumstances of the case, the findings of courts below in respect of bona fide necessity in the rented premise is vitiated, or not?"
8. Since no interim stay was passed in favour of appellants-tenants staying the execution of eviction decree, therefore, it appears that the respondents-landlords proceeded with the execution of eviction decree. The executing court, issued warrant for possession and the same was executed through court bailiff. Appellants-tenants, despite having knowledge about the execution proceedings, remained failed to obtain interim stay from the High Court in their pending second appeal, hence in execution proceedings appellants have been evicted from the rented shop on 18.03.2004 and possession has been handed over to respondents-landlords. The proceedings of execution of the eviction decree are available on record.
9. It appears that since the second appeal was admitted for hearing, appellants-tenants despite of their eviction from the rented shop on 18.03.2004, continued to proceed the second appeal. An application under Order 22 Rule 4 was filed. The second appeal was remained pending for long time in awaiting service of notices of legal representatives of deceased respondent-landlord. Although, the order- sheet dated 19.05.2014 goes to show that counsel for respondents- landlords apprised to the Court that appellants have already been evicted from the rented shop, hence the second appeal be dismissed as (Downloaded on 24/12/2022 at 06:59:34 PM) (5 of 9) [CSA-591/2003] having become infructuous. However, counsel for appellants sought time to verify the position. Even thereafter, counsel for appellants, apparently on the instructions of appellants pursued the matter. The application (I.A. No.8658/2007) under Order 22 Rule 4 CPC was allowed vide order dated 09.01.2015. Again counsel for appellants sought time to seek instructions from appellants, in view of the fact that vacation of rented premise way back on 18.03.2004. Thereafter, the matter was sent to the mediation centre, however, mediation proceedings were remained unsuccessful, therefore, the second appeal was posted before the National Lok Adalats on 10.02.2018 but appellants did not turn up. One of the appellants, appellant No.2 Sh. Ram also passed away, hence, an application under Order 22 Rule 3 CPC was filed. From the side of appellants, several adjournments were taken, then the counsel for appellants did not press the application under Order 22 Rule 3 CPC as other appellants were already on record.
10. In the backdrop of aforesaid circumstances, this Court vide order dated 04.04.2022 directed the appellants that in case they wants to pursue the second appeal on merits, appellants/defendants may produce their affidavit about the details of payment of rent during pendency of this appeal. One of the appellants, Sh. Vijay Kumar Gupta has filed his affidavit dated 07.04.2022. It has been admitted in the affidavit that the possession of rented shop has been taken by respondents on 18.03.2004 in the execution proceedings before the trial court and since, thereafter, appellants have stopped to pay rent. Thus, appellants themselves admit that they have not paid the rent for the rented shop after 18.03.2004, however, appellants expressed their wish to continue the proceedings of second appeal and would like to continue the second appeal on merits.
11. Having heard counsel for appellants on merits, this Court finds that the decree for eviction passed on the ground of bona fide and (Downloaded on 24/12/2022 at 06:59:34 PM) (6 of 9) [CSA-591/2003] reasonable necessity suffers from no infirmity/illegality and jurisdictional error. Both courts below on appreciation/re-appreciation of findings have recorded findings in relation to the bona fide necessity, comparative hardship and partial eviction.
12. Counsel for appellants could not point out any perversity in the fact findings of two courts below.
13. According to the proposition of law, the issue of bona fide and reasonable necessity is essentially a question of fact based on the appreciation of pleadings and evidence. Unless and until the findings do not suffer from any grave perversity, which leads to miscarriage of justice, the same are not required to be interfered with. In the case of Ram Prasad Rajak Vs. Nand Kumar & Bros and Anr. [(1998) 6 SCC 748] the Hon'ble Supreme Court has held that the issue related to bona fide and personal necessity of rented premises is purely based on appreciation of evidence and is a question of fact and such issue does not give rise to any substantial question of law within the scope of Section 100 of CPC. In the present case, both courts have concurrently held the issue of bona fide necessity against the appellants. Findings of both courts below are based on appreciation of evidence. No illegality and perversity have been pointed out in findings of fact of two courts below. The Hon'ble Supreme Court in case of Umerkhan Vs. Bismillabi [(2011) 9 SCC 684] has observed that the Court while hearing the second appeal may frame additional substantial question of law or may hold with the substantial question of law already framed do not fall within the scope of substantial question of law. In the present case, substantial question of law falls for consideration essentially is a question of fact, which requires re-appreciation of evidence. While exercising the jurisdiction under Section 100 CPC, the re-appreciation of evidence is to draw a different conclusion than by the two courts below is impermissible. Hon'ble the Supreme Court in case of Damodar Lal (Downloaded on 24/12/2022 at 06:59:34 PM) (7 of 9) [CSA-591/2003] Vs. Sohan Devi and Ors. [(2016) 3 SCC 78] has also observed that if a reasonable findings is based on fact, no interference should be made. The findings of fact are the province of the trial court and the first appellate court and the High Court should not disturb the same unless and until findings of fact are perverse. Thus, the second appeal is wholly bereft of merits.
14. After hearing the second appeal on merits and having observed that the same is wholly bereft of merits, this Court finds that the appellants pursued this second appeal by misusing the process of law. Firstly, appellants have suffered from the decree for eviction on the ground of bona fide. Secondly, appellants have been dispossessed from the rented shop, way back on 18.03.2004 in the execution of eviction decree, since appellants remained failed to procure any interim stay in their favour. Thirdly, appellants are not paying rent of the rented shop since 2004 onwards. Appellants have already been declared as first defaulter by two courts below. Counsel for appellants took adjournments on several dates, for seeking instructions from the appellants as to pursue the second appeal or not, in view of their eviction from the rented shop, however, appellants pursued the matter. Thus, this is a case where appellants have already been evicted from the rented shop way back on 18.03.2004, they are not paying rent and the tenancy rights have come to an end. Nevertheless, appellants kept this second appeal pending for as many as 18 years. The precious judicial time of this Court was spent on this appeal either in issuing notices for the legal representatives of deceased respondent-landlord or deciding application under Order 22 Rule 4 CPC as well as some other applications under Order 22 Rule 3 CPC filed by parties. Since, appellants themselves have stayed to pay rent, they have no right to claim the continuation of the tenancy, however, on the insistence of (Downloaded on 24/12/2022 at 06:59:34 PM) (8 of 9) [CSA-591/2003] appellants, this Court has to spend its valuable time on this unscrupulous litigation.
This Court finds that the valuable time of this Court has spent on this second appeal at the cost of other genuine litigations. The conduct of appellants, showing their willingness to decide the second appeal on merits even in 2022, despite their eviction from the rented shop on 18.03.2004, in execution proceedings of the eviction decree passed on the ground of bona fide necessity, shows the cussedness and lack of bona fides on the part of appellants. This Court condemns such conduct of appellants. Hon'ble the Supreme Court in case of Ramrameshwari Devi Vs. Nirmala Devi Reported in [(2011) 8 SCC 249] observed that in order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases . In that case, appeals were dismissed with cost quantified to Rs.2 lakhs. Hon'ble the Supreme Court in another case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nanndhavana Patipalanai Sangam Repoted in [(2012) 6 SCC 430] observed that unscrupulous litigants are encouraged to file frivolous cases to take undue advantage of the judicial system. The Court observed that it is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial system.
15. For aforementioned reasons, this Court finds that merely because at one point of time, the second appeal of appellants was admitted for hearing, appellants have not shown their bona fides and instructed their counsel to pursue the second appeal on merits taking a valuable time of this Court.
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16. Considering overall cussedness and lack of bona fides on the part of appellants in pursuing the present appeal for 18 years for no good reason, this Court deems it just and proper to impose an exemplary and punitive cost of Rs.50,000/- upon appellants just to curb and deter such type of practice of litigants to continue a frivolous and unscrupulous litigation before the judicial courts taking precious time of courts to decide such litigations on merits.
17. Hence, this second appeal is dismissed with cost of Rs.50,000/- deposited through demand draft in the name of Registrar (Administration), Rajasthan High Court Jaipur Bench, Jaipur payable by appellants within a period of 30 days. Thereafter, the Registrar (Administration) is directed to deposit the amount of cost in Government Revenue Head.
18. List this appeal on 18.05.2022 in supplementary list to see the compliance and for appropriate orders, in case of non-deposition of the cost within the aforesaid period.
(SUDESH BANSAL),J Sachin/87 (Downloaded on 24/12/2022 at 06:59:34 PM) Powered by TCPDF (www.tcpdf.org)