Ramavatar Kailash Chand v. Suraj Bai — 1986 DIGILAW 512 (RAJ)

S.N. BHARGAVA, J.—This is tenants second appeal against the judgment and decree passed by Additional District Judge No.5, Jaipur City, setting aside the judgment and decree passed by Additional Munsif magistrate No. 1, Jaipur City, and decreeing the suit of the plaintiff Smt. Suraj Bai. 2. The plnintiff Smt. Suraj Bai filed the present suit for eviction of the suit premises which was given on rent to the appellants on 13.6.1951 at the rate of Rs 18/- per month and wherein the appellants have got their goodown. The plaintiff is running a primary school namely. Nehru Bai Shikahsa Kendra and the accommodation which she had, was insufficient for the School. Therefore, she required the suit premises which is adjacent to the school, for accommodating the students as also for office. 3. The suit v as contested by the tenants. In the written statement, it has been asserted that there is no reasorable and bonafide necessity and further that the plaintiff wanted to increase the rent of the suit premises, and with this object, the suit h?s been filed only to haras the defendants. 4. On the pleadings of the parties, the trial court framed the following four issues:. ^^¼1½ vk;k okfnuh dks fooknxzLr lEifÙk dh futh okLrfod ,oa ln~Hkkfod vko;drk gS\ ¼2½ vk;k fMØh bUDyk; fiM+hr u gksus dh lwjr esa okfnuh dks izfroknhx.k ds eqdkcys esa T;knk gkMZfki gksxh\ ¼3½ vk;k izfroknh us fooknxzLr lEifÙk dks lClVsfUk;yh MsesT; fd;k gS\ ¼4½ voqrho** 5. The plaintiff did not examine herself but she examined Gulab Chand her genera! power of attorney holder and PW-2 Narain Lal; whereas defendants also examined Lajpat Rai as DW-1 and Chunnilal as DW-2. 6. The trial court dismissed the suit of the plaintiff and held that the plaintiff has not been able to prove her bonafide and reasonable requirement. 7. The plaintiff preferred appeal and the first appellate court, decreed the suit of the plaintiff. It found that the suit premises are required by the plaintiff reasonable and bonafide. It is against these judgment and decree that the present appeal has been filed. 8. 7. The plaintiff preferred appeal and the first appellate court, decreed the suit of the plaintiff. It found that the suit premises are required by the plaintiff reasonable and bonafide. It is against these judgment and decree that the present appeal has been filed. 8. This appeal was admitted after hearing both the counsels for the parties and the only substantial question of law that was framed by the court at the time of admission, was as under:- "Whether the statement of PW-1 Gulab Chand alleged to be constituted attorney could be considered to be legal evidence in the case on the question of reasonable and bonafied necessity of the plaintiff under the provisions of section 13(l)(h) of the Act." This case was ordered to be listed for final disposal on 4.8.86 and hence, this appeal has come up before me today for final dispsoal. 9. Learned counsel for the appellants has submitted that the land-lady has not examined herself and there an adverse inference should be drawn against her. He has further submitted that the power of attorney holder Gulab Chand was not authorised to give statement, by Mukhtiarnama (Ex. 1). He has further submitted that before filing the suit the notice was given to the defendants on the instructions of the plaintiff, amended plaint, Vakalatnama. and the memo of appeal have all been signed by the plaintiff herself and no reason has been assigned nor any explanation offered as to why the plaintiff did not examine herself He has drawn my attention to the evidence of PW-1 Gulab Chand and has submitted that he has refrained from disclosing material facts, in cross-examination. In this connection he has placed reliance on Section 60 of the Evidence Act. Reliance was also placed on Virendra Pal V. Daljit Singh Sandhu (1) Nanalal Goverdhandas & Co. V. Smt. Samrathbai Lilachand Shah (2) Bombay 1); Chinta Narayanamma V. Kholli Sahu (5) and Gangabisan Panalal Joshi V. Dattatrava Chandrega Bilade and another (4). 10. He has further submitted that the first appellate court was not justified in reversing the finding of the trial court and it has not given cogent reasons as to why it had interfered with the finding of fact arrived at by the trial court. In this connection, he has placed reliances on Sarju Parshad V. Jwaleshwari Pratarnarain (5) and Madhusudan Das V. Smt. Narayani (6). 11. In this connection, he has placed reliances on Sarju Parshad V. Jwaleshwari Pratarnarain (5) and Madhusudan Das V. Smt. Narayani (6). 11. Learned counsel for the appellants has further submitted that merely because this court is hearing second appeal, it should not refrain from interfering even with the finding of fact, if the court feels that the injustice has been done in the case, and that injustice should not be perpetuated in second appeal. In this connection, he has placed reliance on Variety Emporium V.B.M. Mohd. Ibrahim Mains(7) 12. On the other hand, learned counsel for the plaintiff-respondent has equally vehemently submitted that this being second appeal, this court cannot go into the question of fact which has been arrived at by the appellate court on appreciation of evidence and has cited a number of authorities which need not be mentioned here. He has further submitted that the first appellate court has taken into consideration the evidence of PW-2 Narminalal as well as the admissions made by DW-1 Lajpat and DW-2 Chunnilal, and then has come to a finding of fact that the suit premises are required reasonably and bonafide by the land lady. Therefore, this court should not interfere with such a finding of fact. He has further submitted that the judgment of learned Single Judge in Kanalals case (supra) has been specially over ruled by a Division Bench judgement of the Bombay High Court in Nathulal Gagabaka Khandelwal V. Smt. Nandubai (8) AIR 1982 Orissa 183 was based on AIR 1981 Bombay 1 and in Gangabisans case (supra) the learned Single Judge has followed his earlier ruling in AIR 1981 Bombay 1 and did not notice the division bench judgment in Nathulals case (supra) which had been decided earlier He has also placed reliance on Smt. Sumitra V. Smt. Pritam Kaur (9) V. R. Shah V.N. Visalnkchi (10) (1983) (2) R.C.J. 610), K.C. Bhaskaran V.P.U. Unni (11), 13. I have carefully considered the submission made at the bar and have also looked into the judgements of both the courts below as also record of the case and the authorities cited before me. 14. It cannot be laid down as a very general preposition that if the landlord or landlady does not examine himself/herself, an adverse inference has to be necessarily drawn. It will depend on facts of each case. 14. It cannot be laid down as a very general preposition that if the landlord or landlady does not examine himself/herself, an adverse inference has to be necessarily drawn. It will depend on facts of each case. This fact of course, will be considered as a circumstance while considering the plaintiff and while considering the case of the plaintiff and while arriving at the conclusion whether the plaintiff has been able to prove its case of reasonable and bonnfide necessity Ordinarily, a person for whom there is need for getting the suit premises vacated should appear as a witness in the court and make himself available for cross-examination by the other side. But the bonafide need can be proved by other evidence, both oral and documentary and even by circumstances and it is not correct to state that in every case the plaintiff must enter the witnesses box and depose about the requirement. The view that expressed above is fully supported by the view taken by the Kerala High Court in K.C. Bhaskarans case (sura), and a Division Bench decision of the Bombay High Court in Mathulals case (supra), Madras High Court in V.B. Shahs case (supra) and Punjab and Haryana High Court in Sumitra Devis case (supra). The view taken by the Bombay High Court in Nana Lals case (supra) and Ganga Bishan (supra) has already been over-ruled by a division bench judgement of the Bombay High Court in Nathulals case (supra). I am in respectful disagreement with the view expressed by the Delhi High Court in Virendra Pals case (supra). 15. Now coming to the facts of the present case. PW-1 Gulab Chand was appointed as a Mukhtiar as back as on 1.8.1961 and been authorised to do all the acts, connected with the court work. The words used in Ex. 1 "o vU; lHkh dk;Zokgh tks vko;d le>s djs" will obviously include appearing in the witness box on behalf of the plaintiff. The finding of the first appellate court is not based on the evidence of PW-1 Gulab Chand alone but he has placed reliance on other evidence adduced by the parties including PW-2 and the admissions made by defendant witnesses No. 1 and 2. The finding of the first appellate court is not based on the evidence of PW-1 Gulab Chand alone but he has placed reliance on other evidence adduced by the parties including PW-2 and the admissions made by defendant witnesses No. 1 and 2. As regards the objection that the defendants did not get opportunity to cross-examine the plaintiff or that PW-1 Gulab Chand gave evasive answers and had showed his ignorance, specially with regard to the plea of the defendants regarding increase of rent, suffice is to say that it was that defendants, plea that then remedy wanted to increase the rent and it was basically for the defendants to have proved by leading evidence in that connection. 1 do not find any evidence worth the same to increase the rent and therefore, her requirement was not bonafide. Moreover, the question of bonafide and reasonable necessity is a question of fact and sitting in second appeal. I am not inclined to interfere with this finding of fact which is based on appreciation of evidence. Learned counsel for the appellate has failed to show that this finding of fact is perverse or erroneous or is based on no evidence or there is misreading of some evidence or non consideration of some material evidence. 16. The observations of the Supreme Court while exercising their powers under Art. 136 of the constitution in Variety Emporiums case (supra) does not entitle the High Court to ordinarily interfere in second appeal unless the court comes to the conclusion that the findings arrived at by the first appellate are absurd or some great injustice is likely to perpetuate, if no interference is made in second appeal, it is only in compelling circumstances that the High Court should interfere with the finding of fact with a view to impart justice and to remedy the injustice which must be apparent to the court. 17. In the present case, the suit premises are being utilised by the appellants only for storing their goods and they are running business in another shop which is not the subject matter of this litigation whereas the plaintiff requires the suit premises for running her school. 18. Thus, I do not find any force in this appeal. 17. In the present case, the suit premises are being utilised by the appellants only for storing their goods and they are running business in another shop which is not the subject matter of this litigation whereas the plaintiff requires the suit premises for running her school. 18. Thus, I do not find any force in this appeal. The appeal is, therefore dismissed, the judgment and decree passed by the first appellate court are confirmed but looking to the facts and circumstances of the case I leave the parties to bear their own costs. 19. Learned counsel for the appellants has prayed that the appellants should be granted some time to vacate the suit premises which request was opposed by the learned counsel for the plaintiff-respondent. However, in the interest of justice, I think it proper to grant three months time to the appellants defendants to vacate the suit premises and to hand over vacant possession of the suit premises, provided the appellants go on paying rent of the suit premises regularly by 15th of each month to the plaintiff and also files an undertaking with one month from today before this court that they will hand over vacant possession of the suit premises to the landlady (plaintiff) on or before November 15, 1986.