Rajasthan High Court - Jodhpur
Lrs Of Aamana Bai - Abdul Rahman vs Prem Prakash on 22 August, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. CIVIL SECOND APPEAL No.152/1992
Aamna Bai Vs. Prem Prakash @ Dhanraj
Decision dt: 22/08/2012
1/11
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Aamna Bai Vs. Prem Prakash @ Dhanraj S.B. Civil Second Appeal No.152/1992 Date of Judgment : 22nd August, 2012 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI REPORTABLE Mr. J.R. Patel, for the appellant-defendant-tenant. Mr. O.P. Mehta, for the respondent-plaintiff.
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1. The present second appeal has been filed by the appellant-defendant-tenant Aamna Bai W/o late Sh. Ishaji, aggrieved by the judgment and decree of the first appellate court dated 02.11.1992 in Civil Appeal No.1/1992-Prem Prakash @ Dhanraj Vs. Aamna Bai decreeing the eviction suit in favour of respondent-plaintiff-landlord, namely, Prem Prakash @ Dhanraj reversing the decree of trial court dismissing the eviction suit No.822/87 (148/85) - Prem Prakash @ Dhanraj Vs. Aamna Bai.
2. At the outset, it may be noted that the present S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 2/11 second appeal was dismissed in default for appearance and prosecution on 23.03.2009 by a coordinate bench of this Court. However, on restoration application filed by the different counsel, who is now appearing in the matter, Mr. J.R. Patel, the restoration application being S.B. Civil Restoration Application No.54/2011- [Abdul Rehman & Ors. (legal representatives of original defendant- Aamna) Vs. Prem Prakash @ Dhanraj], the same was allowed by this Court on 27.05.2011 noticing therein the statement of learned counsel for the appellant-tenant, Mr. J.R. Patel, that the decree of eviction has already been executed and the possession of the suit shop in question has been handed over back to the respondent-plaintiff-landlord on 05.07.2009 after dismissal of the second appeal on 23.03.2009 and even then the present second appeal was restored at his request.
3. At the time of initial admission of the second appeal, a coordinate bench of this Court vide the order dated 19.01.1993 had formulated the following substantial question of law for consideration:
"Whether the appellate court's finding reversing finding of the trial court on Issues No.2 and 3 are vitiated as the same have been arrived at without taking into consideration the material evidence on record and pleadings of the parties?"
S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 3/11
4. The respondent-plaintiff, Prem Prakash, filed eviction suit being Suit No.822/87 (148/85) - Prem Prakash @ Dhanraj Vs. Aamna Bai, seeking eviction of the appellant- defendant from the suit shop, situated at Telion-ki-Gali, Manak Chowk, Jodhpur (measuring 7½' x 15') in the year 1985, inter- alia, on the ground of bonafide need of the respondent-plaintiff and default in making payment of monthly rent. Initially the suit shop was given on rent to the appellant-defendant at monthly rent of Rs.40/-. The said suit came to be dismissed by the learned trial court of Additional Munsif & Judicial Magistrate, First Class, No.2, Jodhpur vide judgment and decree dated 02.06.1992 disbelieving the bonafide need of the plaintiff- landlord. The learned trial court also extended the benefit of first default to the defendant-tenant u/s 13 (6) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950, (for brevity, hereinafter referred to as 'Act of 1950') finding that the plaintiff- landlord had seven other shops available to do his business and held that there was no bonafide need of the suit shop in question, which was initially let-out to the defendant-tenant.
5. The respondent-plaintiff, Prem Prakash being aggrieved by the judgment and decree dated 02.06.1992 passed by the learned trial court dismissing the eviction suit, preferred an appeal before the lower appellate court, which S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 4/11 was registered as Civil Appeal No.1/1992- Prem Prakash @ Dhanraj Vs. Aamna Bai. The appeal preferred by the respondent-plaintiff came to be allowed by the learned lower appellate court vide its judgment and decree dated 02.11.1992 reversing the findings of the learned trial court. The learned lower appellate court found that other seven shops, which were stated to be available to the plaintiff-landlord did not belong to him and he was doing business in partnership with his father, Sh. Jethmal, however, on account of family dispute, he was separated from the family business three months prior to filing of the suit; and therefore, for establishing his own business, there was a bonafide need for the plaintiff-landlord of the suit shop in question and the other alternative accommodation allegedly available to him was not so available to him as the other shops did not belong to him.
6. The appellant-defendant-tenant being aggrieved of the said eviction decree of the first lower appellate court, has filed this second appeal before this Court on 15.12.1992, on which the aforesaid substantial question of law, referred to supra, was framed by a coordinate bench of this Court.
7. Mr. J.R. Patel, learned counsel appearing on behalf of appellant-defendant-tenant urged that the alleged need shown by the plaintiff-landlord was merely a fanciful desire and S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 5/11 not a bonafide and reasonable need since the father and other family members owned so many shops in the same building and the alleged need of the plaintiff-landlord could definitely be satisfied with such other available shops. He, therefore, submitted that the learned lower appellate court has erred in decreeing the eviction suit while the trial court had rightly dismissed the suit. He further submitted that the tenant is entitled to the protection under the Act of 1950 and unless the bonafide need is properly established before the learned trial court, the appellate court cannot reverse the findings of the learned trial court in this regard.
8. On the other hand, Mr. O.P. Mehta, learned counsel for the respondent-plaintiff-landlord vehemently argued that the landlord is the best judge of his business needs and it is not for the tenant to dictate the terms in this regard. He submitted that the plaintiff-landlord on account of family dispute was separated from the family business and residence and, therefore, was in desperate need of the suit shop, which fell in his share and, therefore, the need of eviction of the defendant- tenant was absolutely bonafide and justified. He, therefore, submitted that soon upon dismissal of the present second appeal in default of appearance on 23.03.2009, by execution of decree of eviction, the possession of the suit shop was handed S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 6/11 over to the plaintiff-landlord on 05.07.2009 by "Sale-Amin" of the Executing Court, and he has immediately set-up his own business in the name and style of M/s Mahendra Plastics. In support of aforesaid contentions, he has also produced photographs of the suit shop along-with his application (IA No.11549/12) under Order 41 Rule 27 CPC filed before this Court on 03.08.2012. The respondent-plaintiff has also produced copies of the title-deeds in respect of suit shop as well as other shops and the present suit shop was given in gift by his father under a gift-deed executed in his favour on 11.04.1974, which gift-deed was duly registered with Sub- Registrar, Jodhpur on 11.04.1974 itself. The other shops have been given to other brothers and, therefore, the contention of the learned counsel for the appellant-defendant, Mr. J.R. Patel, that bonafide need of the present plaintiff-landlord could be satisfied with such other shops, is not tenable as on the date of filing of the suit for eviction, as well as, up-till now, the said need has continued and, therefore, the substantial question of law framed above, deserves to be answered in favour of plaintiff-landlord and the second appeal of tenant deserves to be dismissed. He also submitted that essentially, the findings of bonafide need of the first appellate court are findings of facts and did not require any interference by this Court in Section S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 7/11 100 of Code of Civil Procedure, 1908.
9. In support of his contentions, he relied upon following judgments:
1. Denzil Najrath Vs. LR's of Balwant Singh & Ors.
reported in 2011 (3) DNJ (Raj.) 1217
2. LR's of Prakash Vs. Poornima (SBCSA No.132/2009, decided on 11.05.2011).
10. Having heard learned counsels for the parties at length and upon careful perusal of the judgment and decree of the courts below and case-laws cited at bar, this Court is of the opinion that the present second appeal filed by the appellant- defendant-tenant has no force and the same deserves to be dismissed. The bonafide need of the landlord has to be established by him. True it is that mere whims or fanciful desire o eviction is not sufficient and the need should be reasonable and bonafide and satisfaction has to be that of court on the basis of evidence led by the parties. In the facts and circumstances of the present case and from the evidence, it is clear that the plaintiff-landlord was separated from the family business and was given the suit shop by way of registered gift- deed by his father, Sh. Jethmal, way back in the year 1974 and he was no more involved in the partnership business of the family, therefore, to set-up his own business, he (plaintiff-
S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 8/11 landlord- Prem Prakash) bonafidely needed the suit shop in question. From the statements of the plaintiff, Prem Prakash it does not appear that such need was flimsy desire only. This Court and the Hon'ble Apex Court have held in catena of judgments that landlord is the best judge of his needs of the business and the tenant cannot dictate the terms in this regard. The relevant extracts of the judgments relied upon by the learned counsel for the respondent-plaintiff is quoted below for ready reference, which clearly supports the contention of the learned counsel for the respondent-plaintiff.
11. In the case of Denzil Najrath (supra) this Court has held under: -
"Having heard learned counsels for the parties and having gone through the impugned judgment and evidence recorded by the learned trial court, this Court is satisfied that the findings of the fact about the bonafide need of the landlord recorded by the learned trial court are not perverse in any manner. They are based on cogent reasons and evidence and no interference in the impugned judgment is required to be made in the present first appeal of the defendant-tenant. The owner-plaintiff, Swarn Singh has clearly stated in paras 7 and 8 of his affidavit that the available house with the plaintiff's family was very small of three rooms and for a family of two married brothers and three married sisters and parents of them, the said S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 9/11 accommodation was very short of the requirement and, therefore, they needed the suit house for their own residential purposes. Nothing in the cross-examination was even asked from the said deponent about the relationship and number of family members and, therefore, the averments made in the affidavit was sufficient proof unshaken in the cross-examination of the said deponent, namely, Swarn Singh. It is well settled that findings about the bonafide need of the landlord are findings of fact and unless they can be said to be perverse or without any foundation, the same cannot be interfered with by the appellate court; and even though this is first appeal as the trial Court was that of learned Additional District Judge, Sri Karanpur and requirement of substantial question of law may not be there as such as is required for second appeal under Section 100 C.P.C., still this Court is satisfied that decree under appeal deserves no interference and the present appeal filed by the defendant-tenant has no merit."
12. This Court in the case of LR's of Prakash Vs. Poornima (SBCSA No.132/2009, decided on 11.05.2011) also emphasized that landlord was the best judge of his needs in the following terms:
"5. Learned counsel for the respondent-plaintiffs, Mr. S.N. Pungalia strongly opposed these submissions and urged that no substantial question of law arises in the present second appeal and the finding of facts S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 10/11 returned by the courts below are based on cogent and relevant evidence and the second appeal deserves to be dismissed as the bonafide need of the landlord was fully established before the learned trial court and as per the catenae of judgments of Hon'ble Supreme Court, it is not for the tenant to dictate the landlord as to how and in what manner he should satisfy his bonafide need for his business place and from the facts found by the courts below it was clear that the very source of livelihood of plaintiffs was the STD PCO Booth, which is presently run under the staircase and they need bigger premises for carrying out this business.
6. Having heard the learned counsels and upon perusal of the impugned orders passed by learned courts below, this Court is of the opinion that no substantial question of law arises for determination by this Court and the present second appeal is liable to be dismissed and same is accordingly dismissed."
13. In view of aforesaid legal position and factual circumstances, on the basis of evidence, the learned lower appellate court had rightly decreed the eviction suit in favour of respondent-plaintiff-landlord and the substantial question of law framed above, is accordingly, answered against the appellant- defendant and in favour of respondent-plaintiff-landlord; and the present second appeal filed by the appellant-defendant deserves to be dismissed. The same is accordingly dismissed with no order as to costs.
S.B. CIVIL SECOND APPEAL No.152/1992 Aamna Bai Vs. Prem Prakash @ Dhanraj Decision dt: 22/08/2012 11/11
14. Since, the possession of the suit shop in question has already been handed over the plaintiff-landlord on 05.07.2009, no further orders for eviction are required to be passed at this stage and the eviction is hereby confirmed. The arrears of rent and mesne profit, if any due, shall be paid by the defendant-tenant within a period of three months from today, otherwise, the amount of arrears will carry interest @ 9% p.a. till payment. A copy of this judgment be sent to the opposite party and learned courts below forthwith.
(DR. VINEET KOTHARI), J.
DJ/-
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