Rajasthan High Court - Jodhpur
Amba Lal vs Lalu Ram & Ors on 12 September, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. Civil Second Appeal No.14/1996
Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012
1/23
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Amba Lal Vs. Lalu Ram & Ors.
S.B. Civil Second Appeal No.14/1996
Date of Judgment ::: 12th September, 2012
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
REPORTABLE
Mr. Sajjan Singh &
Mr. J.K. Bhaiya, for the appellant-plaintiff-landlord.
Mr. Suresh Shrimali &
Mr. Mahesh Joshi, for the respondents-defendant-tenant.
--
BY THE COURT (ORAL):
1. The present second appeal has been filed by the appellant-plaintiff-landlord, Amba Lal S/o Moti Lal Bohra, in this Court on 13.12.1995 aggrieved by the judgment and decree of learned lower appellate court of Additional District Judge, No.1, Udaipur allowing defendant-tenant's first appeal being Civil Appeal No.30/94- Lalu Ram Vs. Amba Lal & Ors. The learned lower appellate court below reversed the judgment and eviction decree S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 2/23 dated 01.12.1993 passed by learned trial court of Munsif, Udaipur City (North), Udaipur in Civil Suit No.351/93- Amba Lal Vs. Lalu Ram & Ors., which was filed in respect of suit shop, situated at near Suraj Pole, Udaipur, which suit shop was initially let-out to the defendant-tenant, Lalu Ram way back in the year 1966 and later on a fresh tenancy was created in the year 1985 vide Rent Note Ex.1 dated 15.04.1985 for a monthly rent of Rs.350/- only.
2. The eviction suit was filed by the appellant-plaintiff- landlord on 31.03.1990 seeking eviction of the defendant-tenant, Lalu Ram from the suit shop No.1 in Udaipur Hotel, near Suraj Pole of plaintiff, inter-alia, on the grounds of subletting by the original defendant-tenant, Lalu Ram in favour of one Vijay Ram S/o Girdhari Lal Paliwal and bonafide necessity of the plaintiff-landlord, who needed the suit shop for having a Reception counter and area in his Hotel building situated at heart of the city at Suraj Pole, Udaipur. On the ground floor of which on one side, four shops are constructed by the landlord and out of which, suit Shop No.1 on front right side was originally let out to the defendant-tenant, Lalu Ram according to plaintiff way back in the year 1966, which later on by a fresh Rent Note dated 15.04.1985 vide Ex.1 revising the rent to Rs.350/- per month was so let-out to him.
3. The learned trial court had decreed the eviction suit filed by the plaintiff-appellant vide judgment and decree dated 01.12.1993 while deciding the issues of sub-letting and bonafide requirement of S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 3/23 landlord in favour of plaintiff-landlord. Against which, the defendant- tenant, Lalu Ram filed the first appeal before the lower appellate court below, which appeal being Civil Appeal No.30/94 came to be allowed by the learned Appellate Court below on 19.12.1995 reversing the findings of learned trial court on both the issues No.2 and 3, viz. subletting and bonafide necessity of the plaintiff-landlord.
4. In the present second appeal, a coordinate bench of this Court vide order dated 19.08.1996 while admitting the present second appeal framed the following substantial questions of law for consideration : -
1. Whether, in the facts and circumstances of the case, can it be said that the tenancy has been created by document dated 15.04.1985 and, therefore, the suit as it is filed is barred by the provisions of Section 14 (3), Rajasthan Premises (Control of rent & Eviction) Act, 1950?
2. Whether the findings arrived at by the lower appellate court on the question of sub-letting is vitiated on account of documentary evidence produced by the plaintiff, particularly in view of Ex.10 and Ex.26?
5. On 07.08.2012, after hearing both the counsels, this Court has also framed third substantial question of law for consideration, which reads as under:
3. Whether the first appellate court was justified in reversing the findings of the learned trial court about the bonafide need of S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 4/23 the landlord of suit premises, Shop No.1 for construction of a hotel reception by the plaintiff, who owns the said building and is running the business of hotel in the said premises?
6. Mr. Sajjan Singh, learned counsel for appellant-plaintiff- landlord urged on Issue No.2, regarding subletting that the original defendant-tenant, Lalu Ram had sublet the suit shop in favour of sub-tenant, namely, Vijay Ram S/o Girdhari Lal Paliwal (defendant No.3, who is now represented by his legal representatives) somewhere in the year 1980 and thus parted with possession in favour of such sub-lettee. He also submitted that in a survey conducted by the Food Inspector of the Municipal Council, Udaipur in the year 1982 vide Ex.26 and in the year 1990 vide Ex.10, even a Challan/criminal case was filed against the sub-tenant, Vijay Ram, for alleged deficiencies in food stuff etc. in "Mahaveer Bhonjanaya", run by him in the suit shop No.1 and he admitted before the said Food Inspector that he had taken the said "Mahaveer Bhojnalaya" in the suit shop on contract from defendant-tenant, Lalu Ram. He also drew the attention of the Court towards the notice terminating the tenancy and court summons having been served on the defendant- tenant, Lalu Ram at his village Diyan, about 60 km. away from Udaipur where the suit premises are situated vide Ex.15 and Ex.16 on record.
7. Relying upon the decision of Hon'ble Supreme Court in the case of M/s Bharat Sales Ltd. Vs. Life Insurance Corporation S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 5/23 of India reported in 1998 DNJ (SC) 86, Mr. Sajjan Singh, learned counsel for the appellant-plaintiff submitted that for proving the sub- letting, it is not incumbent upon the landlord to prove the payment of rent or consideration by the sub-tenant to the chief-tenant (defendant) and parting with the exclusive possession either wholly or in part is sufficient to draw the inference for sub-letting. He also submitted that the sub-tenant, namely, Vijay Ram had initially filed written statement before the learned trial court admitting such sub- tenancy, which however, he later on wanted to retract but was not permitted to do so by the learned trial court. Therefore, learned counsel for the appellant-plaintiff, Mr. Sajjan Singh urged that the eviction decree of the learned trial court was justified in this regard, whereas the learned lower appellate court has erred in holding that no sub-letting was proved, since the documents like water and electricity bills were in the name of original-defendant, Lalu Ram, his income-tax returns for the period after the alleged sub-tenancy with that address etc. that showed that he continued to be in possession of the suit shop throughout and there was no sub-tenancy or sub- letting by him.
8. On the issue of bonafide necessity of the landlord, Mr. Sajjan Singh, learned counsel for the appellant-plaintiff urged that it is well settled that the landlord is the best judge about his requirement of his business and personal needs for the suit premises and it is not for the tenant to dictate the terms in this S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 6/23 regard. In support of these proposition, he relied upon following case-laws and further submitted that there is no alternative accommodation available to the landlord for establishing his Reception counter and area of the hotel and it is wrong to contend that shop situated on the other side of the same hotel building, one of shop which became available upon an eviction decree from one Paras Ram in 1970, could be used for such purpose. He further submitted that after such eviction way-back in the year 1970, half of the said shop was used for office purposes by the plaintiff-landlord and remaining half portion was given to one Mohan Lal for opening of a Tea shop for the benefit of customers of the hotel and possession of such half portion was given under a mortgage to said Mohan Lal. The judgments relied upon by the learned counsel for the appellant-plaintiff-landlord are as follows:
1. Guman Mal & Ors. Vs. Babu Lal reported in 2009 (3) RLW 2502
2. Veer Kataria Vs. Yakub Ali reported in 2005 (2) DNJ (Raj.) 764
3. Denzil Najrath Vs. LR's of Balwant Singh & Ors.
reported in 2011 (3) DNJ (Raj.) 1217
4. LR's of Prakash Vs. Poornima (SBCSA No.132/2009, decided on 11.05.2011)
5. G.C. Kapoor Vs. Nand Kumar Bhasin reported in (2002) WLC SC 91.
S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 7/23
6. Vinaykishore Punamchand Mundhada & Anr. Vs. Shri Bhumi Kalpataru & Ors. reported in (2010) 9 SCC 129.
9. During the previous date of hearing of this appeal, an offer was also made by the defendant-tenant, Lalu Ram that he is ready and willing to take the said shop in question at the present reasonable market rate of rent and he offered Rs.5000/- per month for the suit shop. During the course of arguments today, upon instructions of the appellant-plaintiff, Amba Lal, who was also present in the Court, learned counsel for the appellant-landlord, Mr. Sajjan Singh, submitted that the landlord does not wish to give fresh tenancy of the suit shop to the defendant-tenant even at the said higher rent offered, since the suit shop is bonafidely and reasonably required for the landlord for his own requirements of having a Reception of Hotel, which was earlier of 26 rooms but the accommodation has now been increased to 40 rooms. He, therefore, submitted that this offer is not acceptable to the appellant-plaintiff. He also submitted that the shop No.5, the alleged alternative accommodation, available to the plaintiff-landlord is at the backside of the hotel building on the ground floor, which is presently used as store or Godown by the plaintiff-landlord and the plaintiff-landlord is also not willing to give tenancy of which to the defendant-tenant, Lalu Ram in the said backside shop No.5 as an alternative.
10. Learned counsel for the appellant-plaintiff-landlord thus submitted that bonafide requirement of the landlord could only be S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 8/23 satisfied with the eviction of the suit shop No.1, situated at the front side of the Hotel building let out to the defendant-tenant, and the learned lower appellate court below has erred in reversing the decree of learned trial court on this issue No.3 as well, on the flimsy grounds like alternative accommodation being available to the landlord and consequently the question No.3 framed, later on, in the present appeal, deserves to be answered in favour of appellant- plaintiff-landlord and the decree of eviction passed by the learned trial court, deserves to be restored.
11. On the other hand, Mr. Suresh Shrimali, learned counsel for the defendant-tenant, Lalu Ram submitted that findings of the learned lower appellate court below on both the issues of subletting as well as bonafide needs of the landlord are perfectly just and legal and the substantial questions of law framed by this Court, deserve to be answered in favour of defendant-tenant.
12. Relying upon the following judgments, in support of his contentions, Mr. Suresh Shrimali, urged that unless the plaintiff- landlord proves that exclusive possession was handed over to the sub-tenant, Vijay Ram and payment of rent was made by the sub- tenant to the chief-tenant, the inference about the sub-tenancy/sub- letting cannot be drawn. He referred to decision of Hon'ble Supreme Court in the case of Benjamin Premanand Rewade (dead) By Lrs. Vs. Anil Joseph Rawade reported in 1999 (1) RCR 115 SC and submitted that to prove sub-tenancy, two essential conditions are to S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 9/23 be satisfied; viz. (i) sub-tenant was in exclusive possession of the property and (ii) between the sub-tenant and chief-tenant there was relationship of lessee and lessor. He also submitted that it is not sufficient that if only one of the condition is satisfied and unless both these conditions are satisfied, eviction cannot be ordered on the ground of subletting.
13. He further submitted that in the present case, the defendant-tenant, Lalu Ram has completely denied the sub-tenancy in favour of Vijay Ram and the evidence like survey report of the Food Inspector, Municipal Council, Udaipur, is not an admissible evidence. He also submitted that even notice terminating the tenancy and summons of the trial court were served on the alleged sub- tenant Vijay Ram at the address of "Gayatri-Bhojnalaya", Suraj Pole, Udaipur, which upon instructions, he initially submitted, was situated in the same building of the plaintiff-landlord, in which 'Udapur Hotel' was being run, however, this factual aspect upon being denied by the learned counsel for the appellant-plaintiff-landlord in the presence of landlord, Amba Lal, upon instructions, the learned counsel for the respondent-defendant-tenant retracted from this submission on factual aspect. Learned counsel for the appellant- plaintiff, Mr. Sajjan Singh, clarified that said "Gayatri-Bhojnalaya" is not situated in the hotel building of plaintiff-landlord but situated at about 100 meters away in different building, of course, in the same vicinity/area near Suraj Pole Fountain, Udaipur.
S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 10/23
14. Upon exception taken to such misleading statement on factual aspect, learned counsel for the defendant-tenant, Mr. Shrimali, fairly apologized on behalf defendant-tenant and clarified that said another shop owned by Vijay Ram, situated near Suraj Pole Fountain, Udaipur, is little far away from the suit shop in the Hotel building of the plaintiff, known as 'Udaipur Hotel'. Be that as it may, taking a lenient view, this Court has excused the defendant-tenant on this factually incorrect submission.
15. The contention of the learned counsel for the respondent-defendant-tenant, Mr. Shrimali about bonafide requirement of landlord was mainly based on the availability of alternative accommodation to the plaintiff-landlord in the form of Shop No.5, situated towards the backside of the hotel building, shown in the map Ex.13 of building of ground floor at page 139 of the paper book; and also on the ground that the shop became available upon eviction of another tenant, namely, Paras Ram, was sufficient to set up the Reception of the Hotel building and whereas the plaintiff-landlord had set up an office in the half of the portion of the said shop and remaining half portion was mortgaged to one Mohan Lal, who is presently running a tea stall in the remaining portion of the shop, measuring 11'.6'' x 9'.6'' ft. Learned counsel for the respondent-defendant-tenant, Mr. Shrimali, relied upon following case laws:
1. Jamnalal through His L.Rs. Vs. Abdul Rehman @ Chittar S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 11/23 reported in 2007 WLC (UC) 72.
2. M/s Delhi Stationers and Printers Vs. Rajendra Kumar reported in AIR 1990 SC 1208.
3. Mohan Lal Vs. Smt. Radha Kumari & Ors. reported in 1982 (2) WLN 23.
4. Deena Nath Vs. Pooran Lal reported in 2001 WLC (SC) 557
5. Amar Nath Agarwalla Vs. Dhillon Transport Agency reported in 2007 AIR SCW 4263.
6. Diety Pattabhiramaswamy Vs. S. Hanymayya & Ors. reported in AIR 1959 SC 57.
16. I have given my thoughtful consideration to the rival submissions made by the learned counsels for the parties and carefully perused the reasons given in the impugned judgment and decree/s of both the courts below and record of the case, so also, perused the case-laws cited at bar.
17. As far as the substantial question No.1 is concerned, about permissibility of filing of the suit under Section 14 (3) of the Act, within five years the original tenancy, this issue is no more res- integra in view of judgment of this Court in the case of Guman Mal & Ors. Vs. Babu Lal reported in 2009 (3) RLW 2502 (Raj.), wherein this Court has held as under:
"... There is a difference between the two words 'Instituted' and 'lie'. The word 'instituted' denotes a point of time whereas the word 'lie' denotes a period of time.
S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 12/23 Therefore, even if a suit is instituted within a period of five years, the said irregularity gets cured over the period, by lapse of time and the purpose of protection given by Section 14 (3) of the Act is achieved with the lapse of five years and after five years, if such a decree of eviction is passed, such decree cannot be said to be hit by Section 14 (3) of the Act and cannot be declared to be nullity for this reason. This is so because the decree of eviction is not merely a determination of right of the landlord to evict the tenant from tenanted premises but also a relief granted on the grounds of eviction established before the Court of law. If at the time of grant of such relief the statutory bar does not come in the way of the Court, it can always be so granted."
18. In another previous decision of this Court in the case of Veer Kataria Vs. Yakub Ali reported in 2005 (2) DNJ (Raj.) 764, a coordinate bench of this Court had also similarly held interpreting Section 14 (3) of the Act and held as under: -
"13. In my view, even the closest reading of the document makes it clear that it, neither stipulates, nor even contemplates to stipulate, the supersession of the existing tenancy, and creation of new tenancy. In that view of the matter, irrespective of the question, as to whether the tenant continued to be in possession, the main purport of the document is only to recognize, that Yakub Ali is landlord, consequent upon the death of S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 13/23 Nazar Ali, and to provide 7 inch wide space, to enable the plaintiff to park the scooter, but there does not appear to be any intention of the parties to create a new tenancy, so as to attract the bar of Sec. 14 (3) of the Rent Control Act. Thus, the submission does not hold good."
19. Both the learned counsel for the parties fairly agreed that this controversy is no longer res-integra and, therefore, the substantial question No.1, framed above, deserves to be answered in favour of plaintiff-landlord and against the defendant-tenant. Accordingly the same is so answered.
20. Now, coming to substantial question No.2, regarding subletting of the suit premises, this Court is of the opinion that from the evidence on record, the plaintiff-landlord has successfully proved the sub-tenancy by original defendant-tenant, Lalu Ram, in favour of sub-tenant, Vijay Ram. The service of the notice terminating the tenancy was served on the original defendant, Lalu Ram at his village address (At village Diyan, Distt: Udaipur) as well on the sub- tenant, viz. Vijay Ram at the address of the suit property, which is situated in 'Udaipur-Hotel', Suraj Pole, Udaipur, as well as service of summons of trial court also on the aforesaid same addresses respectively, coupled with the inspection report made by the Food Inspector of the Municipal Council, Udaipur, in which the said sub- tenant, Vijay Ram had admitted that he has taken the said "Bhojnalaya" (Mahaveer Bhojnalaya) in shop No.1 in 'Udaipur-Hotel' S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 14/23 on contract from the original tenant, Lalu Ram, which in the opinion of this Court, sufficiently discharges the burden of the plaintiff- landlord to prove the factum of sub-tenancy. As is well settled, it is not necessary for the plaintiff to prove the payment of any such rent by the sub-tenant to the original defendant-tenant, nor any execution of document between the two, is required to be proved and adduced by the plaintiff-landlord as that can be an evidence within the special and exclusive knowledge of those two persons, the sub-tenant and the chief-tenant.
21. The fact, which the plaintiff-landlord has to prove is that to establish that somebody else than the original defendant-tenant is found to be in possession of the suit shop in question and that the original defendant-tenant has parted with the possession of the suit premises to his own exclusion. The twin conditions, formulated by the Hon'ble Supreme Court in the case of Benjamin (supra) stands satisfied in the present case inasmuch as the plaintiff-landlord has proved that the sub-tenant, Vijay Ram was in exclusive possession of the suit shop and there was a relationship of sub-tenant and chief- tenant between the two. The regular absence of the original-tenant from the suit shop coupled with the continuous presence of sub- tenant in the same, is sufficient to discharge the burden of the plaintiff. The learned lower appellate court below apparently has fallen into an error in holding that since there were power and electricity bills and even income-tax returns on record of the original S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 15/23 tenant, it would establish his continued possession over the suit shop. These documents could also exist in the contemporary period, even if the defendant-tenant has parted with the possession in favour of sub-tenant to his exclusion. It is equally possible that a tenant can continue to have water and electricity bills in his own name even if the possession of the suit property is given to the sub-tenant and it is not necessary that sub-tenant should obtain separate power and water connections in his own name by taking fresh connections.
Equally, the income-tax returns filed by the defendant- tenant, Lalu Raj, do not establish the continued possession over the suit shop. A perusal of the Ex.D/5, Sales Tax Return for the Assessment Year 1991-92 and Ex.D/6, Income-tax Return in the prescribed Form No.ITS-2 (Page 197 to 206 of the paper book) reveals that these returns were filed by the defendant-tenant showing himself the proprietor of "Mahaveer Bhojnalaya", Address:
outside Suraj Pole, Udaipur, showing certain turn-over exempted from sales tax for the Assessment Year 1988-89 to the extent of Rs.97,622/- and for the Assessment Year 1989-90 to the extent of Rs.96,205/-. The Assessment Year on the top of the Ex.D/5, reveals that the assessment year is 1991-92. Similarly, the income tax returns Ex.D/6 were filed on 30.09.1991 for the Assessment Year 1991-92. These two documents, in the absence of any further details of turnover and source of income, shown in the income-tax returns without producing Balance-Sheet, Profit & Loss A/c, cannot be S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 16/23 accepted in support of contention that the defendant-tenant, Lalu Ram continued to be in possession of the suit shop and on the other hand, these returns which have been filed much after filing of the present eviction suit on 31.03.1990, gives an impression that these documents, as self-serving evidence, was created by the defendant-
tenant after being served with the notice terminating the tenancy and after service of the summons of the eviction suit upon him, to defend the ground of sub-letting.
22. This Court is of the opinion that the learned lower appellate court below was not justified in reversing the findings of the learned trial court on the Issue No.2, relating to sub-letting and, therefore, the question No.2, framed above, deserves to be answered in favour of appellant-plaintiff-landlord and against the respondents-defendants-tenant. It is answered accordingly.
23. Coming to the third question, relating to bonafide requirement of the landlord, in view of settled legal position that the landlord is the best judge of his requirements and it is not for the tenant to dictate terms in this regard, this Court is of the opinion that alternative accommodation purportedly shown to be available to the appellant-plaintiff-landlord, does not satisfy his requirement of setting up a Reception counter and area for his Hotel, as suggested by the tenant.
24. This Court in the case of LR's of Prakash Vs. Poornima (SBCSA No.132/2009, decided on 11.05.2011) S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 17/23 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 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."
25. In the case of Denzil Najrath (supra) this Court has held under: -
"Having heard learned counsels for the parties S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 18/23 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 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 S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 19/23 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."
26. In the case of G.C. Kapoor Vs. Nand Kumar Bhasin (supra), it has been held by the Hon'ble Supreme Court as under: -
"9. It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Datatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Another [1999 (4) SCC 1], this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to be prove it but there is no warrant for presuming that his need is not bonafide. It was also held that while deciding this question, court would look into the broad aspects and if the court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt.
10. In Raghunath G. Panhale (D) by Lrs. v. Chaganlal Sundarji and Co. [1999 (8) SCC 1] this Court inter alia held that it was not necessary for landlord to prove that he had money to invest in the new business contemplated nor that he had experience of it. It was a case for eviction on the ground of bona fide requirement of the landlord for non-residential purpose, as he wanted to start a grocery business in the suit premises to improve his livelihood.
S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 20/23
11. Regarding financial capacity of the appellant, the courts below have held that appellant did not have financial capacity. From records, we find that the appellant had produced revenue records to show his ownership over agricultural land in additional to the suit premises and made a categorical statement that he would be able to raise fund from financial institutions. Both the courts below with mathematical precision considered this aspect while coming to the fact that he does not have financial capacity. We are of the view that these are irrelevant consideration as the question of having necessary fund to start the business is not at all necessary in view of the law laid down by this Court in the above decision namely Dattatraya Laxman Kamble (supra). That apart, as the appellant has got immovable property, it would not be difficult for him to raise necessary fund and therefore we hold that the finding on this point of the courts below is not sustainable."
27. So far as the argument with respect to the availability of the alternative accommodation becoming available to the plaintiff- landlord is concerned, suffice it to say that the alternative accommodation, viz. Shop No.5, at the backside of the hotel building, which is being used as store/Godown by the plaintiff- landlord; and the shop on the other side of the building, in the half portion of which, the plaintiff had set up his own office and the remaining portion was given to Mohan Lal to set up a tea stall and such back side half portion cannot naturally give any proper S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 21/23 reception area for the hotel building as against the suit shop No.1, situated on the front and right side of the Hotel as shown in the map and that would prima-facie appear to be more suitable for the Reception counter of the Hotel building. Looking to the bonafide requirement of the appellant-landlord from the angle of comparative hardship and partial eviction also, this Court is of the opinion that said hardship would also be more to the appellant-plaintiff-landlord than in favour of the defendant-tenant. Moreover, the findings of facts arrived at by the learned trial court in this regard were based on cogent and relevant evidence, which have been upturned by the first appellate court on erroneous premise of availability of alternative accommodation to the landlord for the given purpose of having Reception area and the first appellate court was not entitled to substitute his own opinion for that of the plaintiff-landlord. This Court does not find any sufficient ground, on which, the learned lower appellate court could have reversed the findings of the learned trial court in this regard. Therefore, this question No.3 also deserves to be answered in favour of appellant-plaintiff-landlord and against the defendants-tenants, Lalu Ram, the same is accordingly so answered.
28. In view of above, the present second appeal of the appellant-plaintiff-landlord is allowed and setting aside the judgment and decree dated 13.12.1995 of learned lower appellate below, the eviction decree granted by the learned trial court vide its judgment S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 22/23 and decree dated 01.12.1993 in Eviction Suit No.351/93- Amba Lal Vs. Lalu Ram & Ors. is restored. No orders as to costs.
29. The respondents-defendants-tenant shall hand over the peaceful and vacant possession of the suit shop in question to the appellant-plaintiff (landlord) within a period of nine months from today and shall pay mesne profit @ Rs.1500/- per month commencing from September, 2012. The arrears of mesne profit shall be cleared within three months from today and the defendant- tenant will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the appellant- plaintiff till the vacant possession is handed over to the appellant- plaintiff and in case there is any default in payment of mesne profit, the period of nine months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendants-respondents shall also clear, if not already paid and all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear interest @ 9% and executing Court may quantify such amount and recover the same as a money decree. The amount already deposited, may be disbursed to the landlord forthwith. The defendants-respondents shall also not sub- let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same, if so created, would be treated as void. The respondents-defendants S.B. Civil Second Appeal No.14/1996 Amba Lal Vs. Lalu Ram & Ors.
Decision dated 12/09/2012 23/23 shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or rent or mesne profits are not paid to the appellant-plaintiff/landlord within a period of nine months from today, besides expeditious execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to both the courts below and both the parties concerned forthwith.
(DR. VINEET KOTHARI), J.
DJ/-
1