Rajasthan High Court - Jodhpur
Harihar vs Turab Ali on 8 August, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 141/2018
Harihar S/o Shri Chunni Lal Patel, Aged About 66 Years, Resident
Of Chhipa Building, First Floor, Sadar Bazar, Near Kamal Ka
Kuan, Bhilwara.
----Appellant
Versus
Turab Ali S/o Hukumudeen Ji, By Caste Bohra- Musalman, R/o
Bohra Society, Near Sanganeri Gate Bhilwara And Fkree Steel,
Near Kamal Ka Kuan, Lohia Market Road, Bhilwara.
----Respondent
For Appellant(s) : Mr. Sajjan Singh.
Mr. Salil Trivedi.
For Respondent(s) : Mr. Sandeep Saruparia.
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 08/08/2018 This appeal is directed against the judgment dated 24.5.2018 passed by learned Additional District Judge No.1, Bhilwara ('the first appellate court'), whereby, the appeal filed by the appellant against the judgment and decree dated 21.9.2013 passed by the Additional Civil Judge (Junior Division) No.2, Bhilwara ('the trial court') has been dismissed.
The respondent - plaintiff filed a suit for eviction of the appellant from the premises in question which is a shop / residence situated on the first floor at Bhilwara. The suit was filed on the ground of default in payment of rent bonafide requirement of premises as well as on the ground that the tenant has acquired a suitable residence.
In the suit, the ground for bonafide requirement indicated was as under:-
(2 of 8) [CSA-141/2018]
"6- ;g fd fookfnr tk;nkn ds uhps dh tk;nkn ¼nqdku½ ij
oknh dk O;olk; gkMZos;j o yksgs ds lkeku vkfn dk gS o fookfnr tk;nkn ls yxh gqbZ mRrj dh vksj dh tk;nkn Hkh oknh dh gSA oknh dks vius O;olk; dk lkeku j[kus ds fy;s o vkikr ds mi;ksx gsrq fookfnr tk;nkn dh ;qfDr ;qDr <ax ls ln~HkkoukiwoZd futh vko';drk gSA oknh ds ikl O;olk; dk lkeku j[kus ds fy;s o vkokl ds fy;s vU; O;oLFkk ugha gSA fookfnr tk;nkn ds [kkyh ugha gksus ls oknh dks Hkkjh dfBukbZ gks jgh gSA okn bl vk/kkj ij Hkh fookfnr tk;nkn izfroknh ls [kkyh djus dk vf/kdkjh gSA"
The aforesaid para pertaining to bonafide requirement was responded by the appellant as under:-
";g gS fd okni= dh dye uEcj 06 ljklj xyr gksus ls Lohdkj ugha gS oknh dks fof/k ds rgr oknxzLr tk;nkn [kjhnus dk vf/kdkj ugha gS D;ksafd izfroknh dks mDr tk;nkn dks gdlQk ds vk/kkj ij igys [kjhnus dk vf/kdkj gS vr% bl dkj.k oknh ds fo:) gd lQk dk nkok py jgk gS vr% oknh dks fooknxzLr tk;nkn ij ;qfDr;qDr o ln~HkkoukiwoZd futh vko';drk gsrq nkok ugha fd;k tk ldrk vkSj izfroknh o mldk ifjokj blh tk;nkn es fuokl djrk gS blds vykok fuokl gsrq dksbZ tk;nkn ugha gS tcfd oknh ds ikl cksgjk eksgYyk esa cgqr cM+h tk;nkn vkokl ds fy, gSa mlesa og o mldk ifjokj cgqr le; ls fuokl dj jgs gS vHkh oknh 45 iSrkyhl o"kZ dk gS o vc rd cksgjk eksgYys esa edku esa fuokl dj jgk gS vkSj izfroknh dks bl tk;nkn ls csn[ky fd;k x;k gS izfroknh dks oknh ls fo'ks"k Hkkjh ?kVuk,a gqbZA"
So far as the ground pertaining to acquiring alternative residence is concerned, it was alleged that the defendant had acquired a plot of land at Vidyut Nagar, which was later on transferred by him. The said averments were also denied by the appellant - tenant.
(3 of 8) [CSA-141/2018] Based on the averments made by the parties, the trial court framed as many as seven issues. On behalf of the plaintiff, he himself was examined and on behalf of the defendant, also he himself was examined.
After hearing the parties, the trial court came to the conclusion that though the appellant had committed default in payment of rent, he was entitled to benefit of first default under Section 13(6) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 ('the Act'). The issues of bonafide requirement, comparative hardship and partial eviction were held against the appellant. The issue regarding acquiring alternative accommodation was also decided against the appellant and consequently, the suit was decreed.
Feeling aggrieved, the appellant filed first appeal. The first appellate court after hearing the parties upheld the findings on all the issues and dismissed the appeal.
It is submitted by learned counsel for the appellant that both the courts below committed grave error in decreeing the suit on the ground of bonafide requirement and availability of alternative residential accommodation. It was submitted that it was the specific case of the plaintiff that he required the accommodation in question for using the same as godown as he had a shop on the ground floor which fact, from the evidence available on record, was not proved as the plaintiff admitted in his cross-examination that the shop in question on the ground floor belong to Saifuddin, his brother.
It was submitted that both the courts below by observing that the bonafide requirement can be for the family as well, (4 of 8) [CSA-141/2018] decreed the suit / dismissed the appeal, which being beyond pleadings is not justified.
Further submissions have been made that the appellant had led evidence to indicate that the respondent had sufficient accommodation for using as godown and, therefore, the courts below committed error in not considering the said evidence / decreeing the suit.
With reference to provisions of Section 13(1)(i) of the Act, it was submitted that requirement of provisions is of having a 'suitable residence' and admittedly the allegation pertains to acquiring a plot of land and, therefore the decree passed by the trial court by holding that ground under Section 13(1)(i) was proved, was contrary to the express language of the said provision and, therefore, the finding deserves to be set aside and appeal deserves to be accepted.
Reliance was placed on Deena Nath v. Pooran Lal : (2001) 5 SCC 705 and Sheshambal v. Chelur Corporation Chelur Building & Ors.: (2010) 3 SCC 470.
Learned counsel appearing on caveat vehemently opposed the submissions made by learned counsel for the appellant. It was submitted that the appellant was seeking to distort the facts; it was nowhere the case of the plaintiff that the shop on the ground floor was owned by him, he simple indicated that he was running business in the shop at ground floor, which fact was not denied by the appellant in the written statement and no cross-examination in this regard was made and, therefore, the finding of the two courts below regarding the business of the plaintiff on the ground floor cannot be faulted.
(5 of 8) [CSA-141/2018] Further submissions were made that no plea regarding the alleged availability of other accommodation for godown purposes to the plaintiff was made in the written statement and, therefore, the evidence led by the appellant could not be looked into by the trial court and, therefore, nothing turns on the same. It was submitted that both the courts below have concurrently found in favour of the respondent, which findings do not call for any interference.
On the issue pertaining to the ground under Section 13(1)(i) regarding acquiring of residence accommodation, it is submitted that plot could have been used for constructing a suitable residence and, therefore, the finding on that aspect also does not call for any interference.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record as well as material made available by learned counsel for the parties during course of hearing.
As quoted hereinbefore, it was the specific case of the plaintiff that he was running his business at the ground floor of the building where the tenanted accommodation was situated on the first floor. In the written statement to the said averments, the appellant instead of contesting the said aspect tried to make out a counter-claim regarding his right of preemption and did not deny the averments made in the para pertaining to bonafide requirement of the landlord.
Thereafter, when the affidavit was filed by the landlord reiterating the requirement as indicated in the plaint but confining the same to use as a godown, virtually no cross-examination on the said aspect was made, which led both the trial court as well as (6 of 8) [CSA-141/2018] the first appellate court to come to a conclusion that the bonafide requirement of the landlord was established.
A question was put to the plaintiff pertaining to ownership of the shop on the ground floor to which it was responded that the same belong to Saifuddin - brother of the plaintiff. Based on the said answer, a case was sought to be built up before this Court that as the accommodation on the ground floor did not belong to the plaintiff, the entire ground sought to be raised regarding bonafide requirement is baseless.
As noticed hereinbefore, it was not the case of the plaintiff that the ground floor shop belongs to him, his case was that he was running his business on the ground floor and for the said business he wanted to use the accommodation on the first floor as godown and, therefore, various submissions now sought to be made by the appellant are totally baseless.
Both the courts have concurrently held in favour of the plaintiff and counsel for the appellant has failed to point out any perversity in the said findings so as to give raise to a substantial question of law and interference under Section 100 CPC.
So far as the plea regarding the availability of other accommodation to the respondent for use as godown is concerned, even if the plea raised by the appellant is taken on face value, it was nowhere the case that the said accommodation was available in the same building, inasmuch as, specific case set up in the plaint was that he wanted to use the accommodation on the first floor as godown for his business on the ground floor of the same building and, therefore, the entire plea raised on this aspect also has no basis, besides the fact that no such plea was raised in the written statement which was confined to residential (7 of 8) [CSA-141/2018] accommodation. The findings pertaining to the comparative hardship as well as partial eviction also being findings of fact do not call for any interference.
So far as the judgment in the case of Deena Nath (supra) is concerned, it was held by the Hon'ble Supreme Court that if the concurrent finding recorded by the two courts below are contrary to the statutory provisions, the same can always be interfered in second appeal, however, in view of the finding recorded above, the said judgment has no application to the facts of the present case. Similarly in the case of Sheshambal (supra), it was laid down that subsequent developments having a bearing on right to relief claimed can always be considered by the court, also has no application to the facts of the present case as unless a plea in this regard is raised in the written statement, no amount of evidence can be looked into.
So far as the ground of availability of alternative residential accommodation to the appellant is concerned, ground as contained in Section 13(1)(i) of the Act reads as under:-
"(i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence;"
A bare look at the above provision would reveal that in case a tenant has build, acquired vacant possession or has been allotted ''suitable residence'', the same gives a ground to landlord to seek eviction of the tenant. The term 'suitable residence' is self- explanatory, wherein, the tenant, who is residing in the tenanted premises should be able to go and reside in the acquired residence.
(8 of 8) [CSA-141/2018] Admittedly in the present case, the plaintiff alleged that the tenant had acquired a vacant plot and, therefore, the plea raised regarding availability of suitable residence was not available in the circumstances of the case. Both the courts below without going into the requirements of provisions of Section 13(1)(i) have held against the appellant, which findings on the issue cannot be sustained.
However, in view of the fact that landlord has been able to establish his bonafide requirement of the premises in question, the decree passed by the trial court as upheld by the first appellate court does not call for any interference. There is no substance in the appeal, the same is therefore, dismissed.
(ARUN BHANSALI),J sumit-42 Powered by TCPDF (www.tcpdf.org)