Laxmi Devi Sharma v. Mahesh Chandra Sharma — 1996 DIGILAW 1177 (RAJ)

JUDGMENT : 1. This Second appeal preferred by the defendant/appellant arises out of the judgment and decree dated 2.12.1995 passed by the learned Additional District Judge No. 4, Jaipur City, in Civil Regular Appeal No. 13/1.994 confirming the judgment and decree of the learned trial court dated 21.9.1995 in Civil Suit No. 640/1980, whereby the learned Additional Munsif and Judicial Magistrate No. 4, Jaipur City, Jaipur, decreed the plaintiff's suit for ejectment and arrears of rent against the appellant. 2. The facts, in brief, are that the respondent filed a suit claiming arrears of rent and ejectment against the appellant. It was contended in the plaint that a shop situated in Chandpol Bazar, Jaipur, was let out to the appellant with effect from 1.1.1972 at the monthly rent of Rs. 135/-. Subsequently a rent note was also executed between the parties on 22.2.1972.1t was contended in the plaint, inter alia, that the appellant had defaulted in payment of rent and house-tax with effect from 1.11.1976. It was further contended that the respondent has specialised in the art of photography and intends to set up the said business in the disputed shop premises which is r squired for his personal bonafide need. It was further contended that the appellant had sub-let the shop to some third party without obtaining the consent of respondent- landlord and as such guilty of parting with the possession of the premises. The respondent had consequently prayed for a decree for eviction of the appellant from the suit premises; for arrears of rent, house-tax and other costs of the suit amounting to Rs. 1735.82 p. In the written statement filed by the appellant, the contentions of the respondent were hotly contested on the grounds, inter- alia, that the appellant is a tenant of the disputed shop with effect from 1.9.1969 which was initially taken on rent from one Gulab Chand, who is father of respondent and a rent note was also executed in his favour. It was further contended that the appellant was always ready and willing to make payment of the rent and he had offered the rent to the respondent. Money-order was also sent but the same was refused by the respondent and thus the appellant had not defaulted in payment of rent. As regards the plea of bona fide requirement of the landlord, the same was specifically denied by the appellant. Money-order was also sent but the same was refused by the respondent and thus the appellant had not defaulted in payment of rent. As regards the plea of bona fide requirement of the landlord, the same was specifically denied by the appellant. The appellant had also denied the plea of subletting and it was submitted that the respondent, his father, brother and mother have got six shops in Jaipur and that the respondent is carrying on the business of photography alongwith his father and brother. It was also contended that comparative hard-ship of the appellant would be far greater than that of the respondent if she is evicted from the suit premises since she was having dealership of Bata and BSC in the Chandpol Bazar, which is a busy commercial centre of Jaipur. 3. The learned trial Court, after framing the issues, recorded evidence of the parties and came to the conclusion that the plaintiff deserves to succeed in the suit and consequently a decree for eviction of the defendant-appellant was passed on the ground of sub- letting, personal bona fide necessity and denial of title, on 21.9.1995. Being aggrieved by the said decree, the appellant preferred an appeal before the learned District Judge, Jaipur City, Jaipur, which was taken up for hearing by the learned Additional District Judge No. 4, Jaipur City, Jaipur, and the learned Appellate Court vide its concurring judgment dated 2.12.1995, confirmed the judgment and decree of the learned trial Court. 4. Against the concurrent findings of the Courts below, the present Second Appeal has been preferred before this Court on the grounds, inter alia, that the Courts below have failed to consider the comparative hard-ship between the parties and without recording any positive findings on the same, has directed the eviction of appellant from the suit premises. It has further been contended that the Courts below have erroneously held that the respondent is not doing the business of photography in his brother's shop but he is employed in the said shop. The learned first Appellate Court has further erred in holding that the appellant has not filed any documentary evidence to controvert the evidence of the respondent-landlord. It has further been contended that the Courts below have erroneously held that the respondent is not doing the business of photography in his brother's shop but he is employed in the said shop. The learned first Appellate Court has further erred in holding that the appellant has not filed any documentary evidence to controvert the evidence of the respondent-landlord. It has further been contended that no reason has been assigned by the Courts below regarding the weightage having been given on the respondent-landlord's evidence and how it is more reliable than the oral evidence submitted by the appellant. On the question of bona fide necessity of the respondent, the appellant has assailed the findings recorded by the learned trial Court on the ground that it is based on mis-appreciation of the evidence on record. With regard to the oral partition of the property, the learned counsel for the appellant has assailed the findings of the learned trial Court on the ground that there is no evidence on the record to show that the property was ancestral and of which oral partition could have been made. It has been contended in this regard that in view of the statement of Gulab Chand, respondent's father, that due to his advanced age he was unable to carry on the business, the respondent could have easily carried on the business in his father's shop and as such there was no bona fide need of the disputed shop and if there was any necessity of the respondent, as alleged, the same should not have been let out to the appellant in the year 1972. On the question of availability of alternative accommodation, the appellant has assailed the findings recorded by the Courts below on the ground that -the respondent does have alternative accommodation available to him to carry on the business whereas the appellant does not have any such alternative accommodation. The appellant has even gone to the extent of challenging the documentary evidence on the record on the basis of which the Courts below have concurrently held that the plaintiff's suit deserves to be decreed on all the three grounds, as referred to above, and surprisingly enough has sought to rely on oral evidence which too has not been proved on the record. 5. 5. I have heard learned counsel for the parties and also perused the judgments of the Courts below as well as the written submissions filed by the learned counsel for the appellant and also examined the summoned record. On the question of concurrent finding, the learned counsel for the appellant has not been able to show as to how the well reasoned findings recorded by the Courts below suffer from any illegality and how the Second Appeal is maintainable against the said concurrent findings. In order to dispel any doubts between the parties, this Court had examined the relevant evidence led by the parties on the record and on the basis of the evidence so recorded by the learned trial Court, the learned counsel for the appellant has again not been able to show any illegality committed by the Courts below. On the question of partition of the suit premises, it was contended by the learned counsel for the appellant that the plaintiff-respondent has alleged personal bona fide necessity to occupy the shop premises and that there has been partition between the members of the family and in view of this partition, this ground of personal bonafide necessity was not available to the respondent to occupy the disputed shop. The learned counsel has assailed the finding of the trial Court on the ground that there has been oral partition of the property on the ground that it is well settled principle of law that when a party in possession of the document does not produce the same in the Court, then adverse inference is to be drawn. 6. It is not understandable as to how the appellant is entitled to challenge the personal bonafide need of the respondent-landlord on the ground of the alleged partition between the members of the respondent's family and that the very fact that the Courts below have recorded a well reasoned finding that the disputed shop had come to the share of the respondent, I am of the considered opinion that the appellant is not entitled to succeed on this ground since the personal bona fide need of the respondent-landlord cannot be disputed on the ground of the alleged partition. With regard to the contention of the appellant that there was documentary evidence in the nature of the order dated 18.1.1973 made by the ITO and various other documents which were produced before the said ITO regarding the alleged partition of the property, I am of the opinion that nothing prevented the appellant from summoning the records from the Income-tax Office and the appellant having not summoned the said records despite the opportunity having been available to him, the appellant cannot be permitted to raise this flimsy ground now before this Court in Second Appeal. On the question of personal bona fide necessity of the respondent-landlord, I am of the considered opinion that the bonafide necessity of the landlord has to be objectively considered as against the comparative need and hardship of the tenant and since the Courts below have recorded well reasoned findings on the question of personal bona fide need of the respondent- landlord and also on the question of comparative hardship of the parties, I am of the opinion that the findings recorded by the Courts below do not call for any interference by this Court. I am further of the view that merely because other members of the respondent's family are owning some other shops which may be available to them in Jaipur, that is no ground to challenge the personal and bona fide need of the respondent-landlord in particular and since the said bona fide need of the respondent cannot be mitigated on account of the alternative accommodation, which may be available to other members of the family, as it has come on record by way of evidence that the respondent-landlord has no other alternative accommodation to run his business except the shop in question, no relief could be given to the appellant on this ground. 7. On the question of concurrent findings recorded by the Courts below, I am of the considered opinion that since the said findings are based on due appreciation of the evidence on the record it is not proper for this Court to take the contrary view of the matter looking to the evidence on the record. 7. On the question of concurrent findings recorded by the Courts below, I am of the considered opinion that since the said findings are based on due appreciation of the evidence on the record it is not proper for this Court to take the contrary view of the matter looking to the evidence on the record. My aforesaid observations are fortified from the judgments of the Apex Court as well as this Court in the matters of Mattulal v. Radhe Lal, AIR 1974 SC 1596 , Smt. Jahejo Devi & others v. Moharam All, AIR 1988 SC 411 , Bhairab Chandra Nandan v. Ranadhir Chandra Dutta, AIR 1988 SC 396 , Maniar Ismail Sab & Others v. Maniar F'akruddin & Others, AIR 1989 SC 1509 , Santosh Kumar Jain v. Sambhulal Krishna Kumar Suhani and Vasundara Bhalla v. Haridas Bhagat & Co. (P) Ltd. In the matter of Bhiarab Chandra Nandan's case (supra), the matter had come up before the Apex Court by way of an appeal arising` out of the judgment of the Calcutta High Court wherein the High Court had interfered with the concurrent findings of the Courts below. The question had arisen on the basis of an eviction petition which was filed by the respondent-landlord under the W.B. Premises Tenancy Act (Act 12 1956). Eviction of the tenant was sought by the landlord on grounds of sub-letting and bona fide need. Both the Courts below viz., the trial Court as well as the first Appellate Court concurrently held that both the grounds of sub-letting as well as bona fide need of the landlord to be well established on the basis of the evidence on the record. In appeal, which was preferred before the Calcutta High Court the High Court interfered, took the contrary view of the matter on the ground that the appellant's requirement of additional accommodation cannot be held to be bona fide since he had failed to disclose in the plaint the number of rooms in his occupation. In an appeal preferred by the respondent- landlord before the Apex Court, the Apex Court took the view that the High Court was not justified in interfering with the well reasoned findings of the Courts below by way of Second Appeal and the view taken by the High Court suffers from patent errors. In an appeal preferred by the respondent- landlord before the Apex Court, the Apex Court took the view that the High Court was not justified in interfering with the well reasoned findings of the Courts below by way of Second Appeal and the view taken by the High Court suffers from patent errors. It was further held by the Apex Court as follows:- .......It is, not, therefore, as if the Trial Court and the Appellate Court had in any way misdirected themselves in rendering their findings on the question of bonafide requirement of additional accommodation by the appellant's failure to state correctly the exact number of rooms in his occupation..." "On the question of subletting also the Courts below had adequate material to conclude that the respondent had sublet the premises, albeit to his own brother and quit the place and the subletting was without the consent of the appellant. The High Court was in error in holding that the tenant's brother was in occupation as a licensee and not as a sub-tenant." Even on the question of availability of alternative accommodation to the landlord, it was held by the Apex Court that there was no need for appeal being remanded back to the Courts below for recording a finding on that question. The appeal was consequently allowed and the judgment and decree of the trial Court and the Appellate Court, were restored. 8. In the matter of Maniar Ismail Sab's case (supra), similar question had arisen for consideration of the Apex Court as to what should be the guiding factors for the High Court while dealing with the Second Appeals in view of the concurrent findings of the Courts below. It was held by the Apex Court that ordinarily the High Court should not interfere in Second Appeal against the concurrent findings of the Courts below, unless sparing and exceptional circumstances justify such interference. 9. In view of the aforesaid observations, I am of the view that this Second Appeal has no merit and the same deserves to be dismissed. Consequently, the judgment and decrees of the trial Court dated 219.1995 as well as of the learned Additional District Judge No. 4, Jaipur City, Jaipur, in Civil Regular Appeal No. 13/1994 dated 2.12.1995, are affirmed. No order as to costs.Appeal Allowed.