Research › Browse › Judgment

Rajasthan High Court · body

1996 DIGILAW 1097 (RAJ)

LR’s of Abdul Razak Khan v. Mohanlal Agarwal

1996-09-25

P.C.JAIN

body1996
JUDGMENT 1. - This is defendant's appellant's second appeal against the judgment and decree dated 4.2.1994 passed by Shri Prasand Kumar Sharma, Civil Judge, Abu Road in Civil Appeal No. 19/91 reversing the judgment and decree dated 27.10.1989 passed by Shri T.S. Samma, Munsif Magistrate, Abu Road in Civil Original Suit No. 123/84 whereby the plaintiff's suit for eviction was dismissed. 2. The brief facts necessary for disposal of this appeal may be stated as follows. 3. The appellants are the legal representatives of deceased Abdul Razak Khan, Advocate. Shri Abdul Razak Khan was a tenant in the suit house which belonged to Mangal Chand S/o Shri Multanmal Jain. Mohanlal, plaintiff-respondent purchased the house from Mangalchand on 18.1.1984. He filed the present suit for eviction and arrears of rent. Eviction was sought on ground of reasonable and personal bonafide necessity. Abdul Razak Khan died during the pendency of the first appeal and the present appellants were brought on record as his legal representatives. At present Shri Nemu Razak Khan is residing in the said house. He is an advocate, practising in the Judicial Court of Abu Road. He is also having his office in the house. The suit v. as resisted by the appellants. The trial Court dismissed the suit vide judgment and decree dated 27.10.1989 and held that the appellants had not committed any default in payment of rent. It may be stated that the ground of default has not been agitated before me also. Aggrieved by the judgment and decree dated 27.10.1989, the plaintiff preferred first appeal (19/91) and the learned appellate Court, by the impugned judgment and decree, reversed the finding of the trial Court as regards the reasonable and bonafide personal necessity and the suit was decreed. The appellants have, therefore, filed this second appeal. 4. I have heard learned counsel for the appellants a i the respondent on the point of admission of this appeal. 5. Learned counsel for the appellants has submitted that the learned first appellate Court has committed a grave error in reversing the decision particularly on issue No. 2. Learned counsel has referred to the evidence and submitted that the trial Court dis,cussed the above evidence in detail and arrived at the conclusion that the plaintiff could not prove the reasonable and bonafide personal necessity in respect of the suit premises. Learned counsel has referred to the evidence and submitted that the trial Court dis,cussed the above evidence in detail and arrived at the conclusion that the plaintiff could not prove the reasonable and bonafide personal necessity in respect of the suit premises. There was absolutely no justification for the first appellate Court to have reversed the above finding. The first appellate Court has not given any cogent reasons justifying interference with the above finding. Learned counsel has placed reliance on the following cases : 6. Bhagirath v. Ramprasad & Anr., 1987 RLR 88 , Gautamchand Jain & Ors. v. Smt. Sushila Kumari Jain & Ors., AIR 1986 SC 513 and Amarjeet Singh v. Smt. Khatoon, AIR 1987 SC 741 . 7. Learned counsel for the respondent, on the other hand, has justified the judgment of the first appellate Court. The learned trial Court though referred to the evidence of the parties but did not subject it to judicial scrutiny and the conclusion drawn by him was not rational and judicial. The learned appellate Court discussed the evidence in detail. Learned counsel also referred to the statement of witnesses to justify the conclusion drawn by the learned first appellate Court. He also referred to the restrictive jurisdiction conferred by Section 100 CPC on the High Court in admitting the second appeal. He submitted that a second appeal can only be admitted when a substantial question of law is involved. There is plethora of decisions upholding the principle that a finding of fact arrived at by the lower Court is binding on the High Court in second appeal and it is not justified in disturbing the finding of fact of the trial Court unless it is perverse, capricious or baseless. 8. I have considered the arguments and as also the case law cited before me. The cases cited by the learned counsel for the appellants generally deal with the question of personal and bonafide necessity. It is always a question of appreciation. Issue No. 2 was essentially an issue of fact. It is correct that both the Courts gave divergent finding of this issue. I have gone through both the judgments and I am of opinion that there is absolutely no ground to interfere with the finding of the fact arrived at by the first appellate Court because it is not vitiated by any ground on which interference can be justified. It is correct that both the Courts gave divergent finding of this issue. I have gone through both the judgments and I am of opinion that there is absolutely no ground to interfere with the finding of the fact arrived at by the first appellate Court because it is not vitiated by any ground on which interference can be justified. High Court cannot interfere with the conclusion of fact recorded by the lower appellate Court even it may be erroneous because, however, gross or unexcusable the error may seen to be, there is no jurisdiction under section 100 CPC to correct that error. The finding of the first appellate Court is based on proper consideration of the entire evidence on record and do not suffer from misreading or omission or perversity. It is also a settled law that the question in a suit for eviction as to whether landlord genuinely required accommodation for reasonable and bona fide personal necessity is a question of fact. 9. I, therefore, held that no substantial question arises or consideration in this section and appeal. The appeal is, therefore, hereby dismissed.Appeal dismissed. *******