Rajasthan High Court - Jaipur
Nishar Mohammed vs Abdul Rashid on 24 August, 2004
Equivalent citations: RLW2004(4)RAJ2684
JUDGMENT A.C. Goyal, J.
1. The defendant-tenant has preferred this second appeal against the judgment and decree dated 22.7.2002 whereby the learned Additional District Judge No. 1, Jaipur City, Jaipur affirmed the judgment and decree of eviction dated 5.3.2001 passed by the learned Civil Judge (Junior Division), Jaipur City (West).
2. Briefly narrated the facts are that the plaintiff-respondent filed a civil suit for eviction and permanent injunction in March, 1991 with the averments that the plaintiff's father Abdul Karim let out the suit shop to the defendant on 1.1.1975 on monthly rent of Rs. 60/-. On account of some repairs, the rent was enhanced to Rs. 75/- per month. Eviction was sought on grounds of default in payment of rent, closure of the shop for more than six months, reasonable and bonafide requirement, it was prayed that the defendant may be restrained from parting with possession of the suit shop.
3. The defendant vide written statement, having admitted himself to be the tenant denied all the grounds of eviction, with the objection that the plaintiff alone had no right to file the suit as there are other legal heirs of the original landlord Abdul Karim.
4. Issues were framed and evidence was recorded. Learned Civil Judge (Junior Division), Jaipur City (West) vide judgment dated 5.3.2001 held that the plaintiff failed to prove the closure of the shop by the defendant for a period of more than six months without any reasonable cause; that the plaintiff has proved his reasonable and bonafide requirement; that comparative hardship would because to the plaintiff; that partial eviction would not serve purpose of the either party as measurement of the shop in question is 4' 6" x 9'; that defendant had paid rent to the plaintiff treating himself to be his tenant after the death of Abdul Karim and thus, passed the decree of eviction.
5. First appeal filed by the defendant was dismissed vide judgment dated 22.7.2002.
6. I have heard learned counsel for the parties.
7. Learned counsel for the appellant contended that the findings of the courts below on the issue of reasonable and bonafide requirement and comparative hardship are perverse. The application under Order 41 Rule 27 CPC was filed along with certain documents in the first appellate court on 2.2.2002. Arguments on this application were heard and thereafter, it was observed that this application shall be considered at the time of hearing of the appeal itself but the first appellate court did not consider this application while deciding the first appeal and therefore, this involves a substantial question of law. It was next submitted that during the pendency of the proceedings, the plaintiff-landlord let out a big showroom on higher rent after getting a sum of Rs. 5,56,000/- as 'Pagri' and that the plaintiff got vacant possession of one more shop from other tenant but the courts below did not take into consideration these relevant facts and thus, the findings are erroneous and that the documents filed with the application under Order 41 Rule 27 CPC were relevant to falsify the case of the plaintiff that due to construction of stairs in the shop which was got vacated from Verma Watch Co. the plaintiff is unable to do his business in that shop as there were already stairs from the Chowk of the house of the plaintiff to go over the roof and thus, the concurrent findings of the courts below are perverse and substantial question of law arises in this second appeal. He has placed reliance on Mohan Das v. Bachan Lal, 2000 WLC (Raj.) UC 228 wherein it was held by this court that the appellate court should decide the application for additional evidence in appeal along with the appeal itself. Similar view was taken by this Court in Smt. Jamna and Ors. v. Bhuwana, RLW 1997 (2) Raj. 796. The Apex Court in Wadi v. Amilal and Ors., 2002 WLC (SC) Civil 726, held that vigilance or negligence of the party is not relevant and the additional evidence in appeal should be allowed if the document in question throws light on germane issue. In Gurdev Singh and Ors. v. Mehnga Ram and Anr., AIR 1997 SC 3572, it was held that the appellate court has jurisdiction to pass order under Order 41 Rule 27(b) CPC one way or the other and that can be challenged in second appeal against the appellate decree but such an order should not be interferred in revisional jurisdiction at interim stage.
8. Per contra, learned counsel for the plaintiff-respondent submitted that if the documents filed along with application under Order 41 Rule 27 CPC are taken into consideration, the findings of the courts below on the issues of reasonable and bonafide requirement and comparative hardship are not affected at all as these documents have no bearing on these findings. It was also contended that the evidentiary value of these documents was considered by the Trial Court. It was also constended that no showroom was let out in the year 1996 after filing the present suit, rather it was already with the tenant since 1985 and on account of fire, the said shop was rebuilt and thereafter, rent was enhanced. It was also contended that the other shop, which was got vacated from Verma Watch Co. belongs to Abdul Wahid who is brother of the plaintiff and findings on the issue of reasonable and bonafide requirement and comparative hardship are concurrent and no substantial question of law arises. He has placed reliance upon some judgments.
9. In Vishnu Iron & Steel Industries v. Govind Ram, 2003 (3) WLC (Raj.) 265, RLW 2003 (4) Raj. 2323, it was held that if the defendant does not press the application under Order 41 Rule 27 CPC, he can have no grievance against its own negligence and none of the documents sought to be adduced are remotely relevant to the controversy. In Ram Nibas Gagar (dead) by LRs. v. Debojyoti Das and Ors., (2003) 1 SCC 472, it was held that belated efforts to introduce subsequent events in order to break down the findings of fact would not be just. In Sadhu Ram v. Ghasi Ram, 2001 (4) WLN 327, this court held that since the applicant was having knowledge about the documents but he did not produce them before the Trial Court, his application under Order 41 Rule 27 CPC was rightly rejected by the first appellate court. In Pakeerappa Rai v. Seethamma (dead) by LRs and Ors., RLW 2002 (3) SC 424, it was held that the High Court in second appeal cannot interfere even with the erroneous findings of fact howesoever gross error seems to be in Hamida and Ors. v. Md. Khalil, (2001) 5 SCC 30, it was held that where the first appellate court has reached findings of fact based on evidence on record, High Court in second appeal would not be justified in taking a different view merely on the basis of reappreciation of such evidence.
10. I have considered the rival submissions in the light of the judgments relied upon. Trial Court on the basis of evidence of the parties came to the conclusion that the defendant himself admitted in his statement that presently, the plaintiff has no other shop except the open roof; the 'plaintiff has three sons Abdul Hamid, Abdul Aziz and Abdul Majid; the suit shop is required for Abdul Hamid. According to the statement of the defendant, Abdul Hamid is carrying on his business in the shop No. 4 which is adjoining to the suit shop and this shop No. 4 was vacated by M/s. Verma Watch Co. The Trial Court in view of the statements of PW-2 Abdul Hamid, PW-3 Ahmed All and the plaintiff, came to the conclusion that the stairs have been constructed in the shop which was got vacated from M/s. Verma Watch Co. and thus, this shop is not suitable for business of readymade garments, it was further observed that assuming that shop No. 4 which was got vacated from M/s.Verma Watch Co. is available for Abdul Hamid, the requirement of Abdul Hamid to carry on his independent business in readymade garments cannot be said to be unreasonable and the plaintiff has got no other shop for his son Abdul Hamid. Regarding the shop on rent with L.D. Hosiery and Laxman Das, the Trial Court observed on the basis of the statement of the defendant himself that this shop was burnt on account of fire in November, 1995. This shop was on rent with Laxman Das since 1984 or 1987. On the basis of the documents Ex.12, Ex.15 and Ex.16, the Trial Court observed that this shop was given on rent to Jhaman Das in June, 1985 and thereafter, his son Laxman Das started business in the name of L.D. Hosiery. It was also observed that half of the premises belongs to the plaintiff while the remaining half portion belongs to plaintiff's brother Abdul Hamid and thus the monthly rent of Rs. 13,000/- is divided into two brothers. It was further observed that when the incident of fire took place in November, 1995 in that shop, litigation took place between the plaintiff and Laxman Das, owner of L.D. Hosiery and that matter ended into compromise and monthly rent of Rs. 13,500/- was agreed upon and Laxman Das further agreed to raise construction over the roof of the shop at his own expenses and thus, it was further held that a sum of Rs. 5,56,000/- cannot be found to be proved as payment of Pagri to the plaintiff. Thus, the Trial Court having taken into consideration the facts and circumstances of the case came to the conclusion and rightly so that the requirement of the plaintiff for his son has been found proved to be reasonable and bonafide. This finding of fact has been affirmed by the first appellate court.
11. In view of the judgments of the Apex Court delivered in Pakeerappa Rai and Hamida and Others (supra), such finding of reasonable and bonafide requirement and comparative hardship is a finding of fact and this finding is concurrent of the two courts below and thus, this Court cannot set aside such concurrent findings which are based on evidence available on the record. The documents filed along with application under Order 41 Rule 27 CPC do not adversely affect the concurrent findings of the courts below on the point of reasonable and bonafide requirement and comparative hardship. The first document is a copy of reply of application under Order 39 Rule 2 CPC. This reply was filed by the present plaintiff and others in Civil Suit filed by Laxman Das, Proprietor of M/s. L.D. Hosiery and Sales. In additional para 'Kha' of this reply, it is mentioned that there is staircase in the Chowk which goes to the roof. In view of this averment, learned counsel for the appellant tried to show that the staircase already existed in the Chowk and hence, the plaintiff's case that the stairs were constructed in the shop which was got vacated from M/s. Verma Watch Co. is falsified. But no such conclusion can be drawn on the basis of this averment. Along with this document, copies of number of affidavits which were filed in support of this reply, have been filed.
12. Learned counsel for the appellant next referred to one copy of the compromise arrived at between the plaintiff in the present case and Laxman Das. He referred to para 1 of this compromise petition wherein it was mentioned that the ground floor of the plaintiff's house No. 2050 has been given on rent to Laxman Das and the tenancy commenced from 2.4.1996. As per the learned counsel for the appellant, it is evident from this para 1 that one shop (showroom as per the appellant) was given on rent on 2.4.1996 after filing the present suit for eviction and thus, the plaintiff's requirement goes away. But this statement is also devoid of merit in view of the entire evidence including the statement of the defendant himself taken into consideration by the two courts below. The finding on the issue of reasonable and bonafide requirement is finding of fact and not finding of law or mixed finding of law and fact and such concurrent finding of fact cannot be interfered with in second appeal if such findings are based on evidence available on the record.
13. In view of the entire discussion made hereinabove, the said findings on the issues of reasonable and bonafide requirement of the plaintiff and comparative hardship, are based on proper appreciation of evidence of the parties and the same are not perverse in any manner. No substantial question of law arises in this second appeal.
14. Consequently, this second appeal along with stay, application is hereby dismissed at the admission stage. Records of the courts below be sent back without delay.