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1998 DIGILAW 1113 (RAJ)

Bajrang Singh v. Girraj Prasad

1998-10-28

ARUN MADAN

body1998
Judgment Arun Madan, J.-The appellant herein has come up by way of this appeal wherein, he has assailed the Judgment and decree dated 9-7-1998 of the learned District Judge, Karauli in Civil Regular Appeal No. 22/93 whereby, the said Appellate Court had affirmed the Judgment and decree of eviction of the learned Additional Munsiff , Karauli in Civil Suit No. 45/87 passed against the defendant-appellant for his eviction from the suit premises on the grounds of default and bona fide necessity in a suit filed by the plaintiff-respondent. 2. This appeal has been heard and is being disposed of finally at admission stage at joint request of both the parties on the following substantial questions of law qua the rival contentions of the parties. (a) Whether it is open to the appellant to contend on the question of having not been given benefit of first default by the trial Court notwithstanding having already availed of the said benefit in earlier suit filed by the plaintiff-respondent where after determination of the rent made by the Court as per Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 for short “the Act of 1950” the appellant had deposited arrears of rent for a period of 23 months, which admittedly were deposited pursuant to the orders of the trial Court after giving him benefit of first default? (b) Whether after having availed of the benefit of first default in earlier suit, since the only ground on which the eviction was sought by the plaintiff in the said suit related to the ground of default, is the appellant entitled to plead contrary to the findings arrived at by the trial Court in earlier suit, particularly when he has committed default for the second time in not having paid arrears of rent, which admittedly had fallen due from him for a period of 33 months to the plaintiff-landlord, who had been compelled to file second suit for eviction on the ground of default being willful and deliberate (2nd default) as well as other grounds out of which only two grounds survived before the trial Court (i) 2nd default, (ii) bona fide, necessity of the landlord? (c) Whether it is open to the appellant to assail concurrent findings recorded by the Courts below, which admittedly held on due appreciation of the evidence that after having availed of the benefit of first default in earlier suit the appellant had again deliberately with some ulterior motive had committed default for th 2nd lime thus making out a ground for hi s eviction from the suit premises? (d) Whether it is open to the appellant to contest bona fide need of the landlord-plaintiff who admittedly has no other alternative accommodation available to him for running of his son’s business relating to a Chemist’s shop for his son who was unemployed whereas on proper appreciation of the evidence, the Courts below have recorded concurrent and positive finding to the effect that the appellant has got other 3-4 shops available to him in which he has been running business along with his wife and sons and as such, even on comparative hardship it has been found that the plaintiff would be put to greater hardship on account of non-availability of suitable alternative accommodation? .3. The fuels relevant for deciding the present appeal briefly stated is that before filing the second suit giving rise to the present appeal, earlier a suit was filed by the plaintiff on the sole ground of default, which was subsequently withdrawn by the respondents themselves in the year 1978. The present appeal has arisen out of second suit which was filed by the respondents on 11th November, 1980 for eviction and for arrears of rent on the grounds of (a) default, (b) material alteration, (c) subletting, and (d) bona fide necessity in respect of the suit property which is a shop premises on the following averments inter alia :-- .(i) The tenant has committed default in payment pf monthly rent as well as arrears of rent till the institution of he second suit as per Section 13(1)(a) of the Act of 1950? .(ii) the tenant has created material alteration in the suit premises by raising construction without obtaining prior permission of the plaintiff-respondent as per Section 13(1)(c) of the Act of 1950. .(iii) the tenant has sublet or parted with the possession of the suit premises as per Section 13(1)(e) of the Act of 1950. .(ii) the tenant has created material alteration in the suit premises by raising construction without obtaining prior permission of the plaintiff-respondent as per Section 13(1)(c) of the Act of 1950. .(iii) the tenant has sublet or parted with the possession of the suit premises as per Section 13(1)(e) of the Act of 1950. .(iv) the suit premises is required reasonably and bona fide by the landlord as per Section 13(1)(h) for use or occupation by himself and members of his family more particularly in view of his growing family requirements as well as for the establishment of a Chemist’s shop by his son. 4. Both the Courts below have rejected the plea of the respondents with regard to the grounds of material alteration and subletting but, have decreed the suit of the respondents on the grounds of default and bona fide necessity against which the appellant has come up by way of present appeal. 5. Theallegations in the plaint with regard to the two grounds, i.e. the grounds of default and bona fide necessity, are that the appellant has failed to tender or deposit monthly rent at the rate of Rs. 40/-per month from 2nd February 1978 to 2nd November, 1980 thus he had committed a default of 33 months in the payment of rent. For bona fide necessity, the respondents came up with the case that the son of Respondent No. 2. Arun Kumar, who had recently passed his B.Sc. examination, was unemployed and he intends to open a shop of medicines and for this purpose the shop, which is under the tenancy of the appellant, is required by the respondents. 6. In defence to the pleadings of the plaintiffs, the case as set up by the defendant was that the plaintiffs themselves had refused lo accept the agreed rent and advised the appellant that on account of some repair work which was carried on by the appellant and some construction work, the rent due will stand adjusted against the expenses incurred by the appellant. 7. On the ground of personal and bona fide necessity of the respondents to occupy the suit premise, the appellant has taken a plea that since the respondent’s son did not possess the requisite drug license for running the Chemist’s shop, the question of his bona fide requirement to occupy the suit premises did not arise. 7. On the ground of personal and bona fide necessity of the respondents to occupy the suit premise, the appellant has taken a plea that since the respondent’s son did not possess the requisite drug license for running the Chemist’s shop, the question of his bona fide requirement to occupy the suit premises did not arise. It was contended in this regard, that the suit had been filed with some ulterior motives since otherwise; there was no ground for eviction of the appellant. 8. On the basis of the pleadings of the parties, the trial Court framed as many as six issues out of which issue Nos, 1, 5 and 6 are relevant for the adjudication of this appeal. As regards the first ground of eviction i.e. default in payment of agreed rent, since the appellant had failed to discharge the onus cast upon him by leading any cogent and reliable evidence on the recprd in rebuttal, the issue in this regard was decided against him. 9. On the question of the bona fide requirement of the plaintiff-landlord to occupy the suit premises, the trial Court held that after recording the statements of plaintiffs witnesses it is established that the defendant-appellant has several other shops which are owned by him apart from the suit premises in question which is under his occupation as a tenant, whereas the landlord’s son who is graduate and is still unemployed, wants to open a Chemist’s shop for running his business but due to non-availability of other alternative accommodation except the suit premises and hence his comparative hardship is much greater than that of the appellant. Consequently the issue in this regard was also decided against the defendant-appellant. 10. Previous suit was filed by the respondents only on the ground of default, wherein after the determination of rent, the respondents withdrew their suit. In view of the fact that in the previous suit bearing Civil Suit No. 118/78. Consequently the issue in this regard was also decided against the defendant-appellant. 10. Previous suit was filed by the respondents only on the ground of default, wherein after the determination of rent, the respondents withdrew their suit. In view of the fact that in the previous suit bearing Civil Suit No. 118/78. filed on 13-12- 1978 by the plaintiff-respondent herein, the controversy involved between the parties was regard- ing the rate of rent at which the premises were let out to the defendant-appellant and consequently it had become necessary for the trial Court to record a specific finding with respect to determination of rent in view of specific provisions of Section 13(6) of the Act, which stipulates as under :--“(6) If a tenant fails to deposit or pay any amount referred to in Sub-section (4), on the date or within the time specified therein, the Court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.” 11. The rate of rent was accordingly determined in earlier proceedings giving rise to the first suit which was filed on the sole ground of default in payment of rent and thereafter the defendant-appellant deposited the arrears of rent in pursuance of the aforesaid order of the trial Court and thereafter he has been continuously paying the rent till the date of institution of Civil Suit No. 45/87 (119/80) i.e. the 2nd suit giving rise to the present appeal which was decreed in favour of the respondent-plaintiff on 27-7-1993 on the grounds of default as well as bona fide and personal necessity of the respondent-landlord to occupy the suit premises in question. The said order was challenged in appeal before the First Appellate Court by the present appellant bearing Civil Regular Appeal No. 22/93, decided on 9-7-1998 by the learned District Judge, Karauli who upheld the finding of the trial Court on both the grounds of : (1) default in payment of arrears of rent, and (2) bona fide and personal necessity of the premises in question. Hence this second appeal. 12. I haveheard learned Counsel for the parties, examined their rival claims and contentions as well as the legal position on the subject. 13. Hence this second appeal. 12. I haveheard learned Counsel for the parties, examined their rival claims and contentions as well as the legal position on the subject. 13. It was contended by the learned Counsel for the appellant that in the absence of any finding with regard to commission of default in payment of rent by the appellant in the previous suit, it could not be said that the appellant has committed any default and hence he was entitled to the benefit of first default in the 2nd suit. The second contention of the learned Counsel was that while it is true that after determination of rent by the Court the appellant had deposited the rent due but simply on this basis no inference can be drawn that the appellant had committed default in payment of rent. Yet another contention of the learned Counsel in this context was that as a matter of fact, the amount, which is deposited after the determination by the Court under Section 13(3) of the Rent Control Act is adjustable under Section 13(7) of the Actat the time of decree, if the Court comes to the conclusion that the tenant has not committed any default in payment of rent and simply by the Court’s order he had deposited the rent. It was further contended that no such exercise having been done in the previous suit, it cannot be said that the appellant was found to be defaulter. As an alternative argument, it was contended that it was the duty of the Court to consider it as his first default and make determination of rent afresh and extend protection to the tenant against default and no decree on the said ground could have been passed against him. 14. I have given my earnest consideration to the rival contentions of the parties. As regards first contention of the appellant, in my view, since the determination of rent had been done by the trial Court on 13-12-1978 itself , the question regarding the default in payment of rent including the arrears, if any for the period in dispute would not arise in the absence of finding on the question of default. As regards first contention of the appellant, in my view, since the determination of rent had been done by the trial Court on 13-12-1978 itself , the question regarding the default in payment of rent including the arrears, if any for the period in dispute would not arise in the absence of finding on the question of default. In my view, the contention is not sustainable in view of the finding recorded by the trial Court in the subsequent suit bearing Civil Suit No. 45/87 (119/80) giving rise to the present appeal because even after the determination of rent, the appellant-tenant had committed default in payment of arrears of rent for the period in dispute and as regards which he had failed to discharge the onus by leading any satisfactory evidence in rebuttal. Having thus not come with clean hands, the appellant was not entitled to blow hot and cold at the same time by contending that he was not given the benefit of 1st default in Second Suit notwithstanding having already availed the same in the First Suit. 15. I am fortified in my observation from the findings of the First Appellate Court in para 8 of the impugned-Judgment wherein, it has been specifically recorded that after the provisional determination of the rent Rs. 40/-per month the appellant was found in arrears of rent for the period from 1-3-1976 to 1-2-1978 for the total period of 23 months amounting to Rs. 920/-on which simple interest of Rs. 55.20/-was also allowable besides cost of the proceedings. The finding which has been recorded by the trial Court and which has been affirmed by the First Appellate Court is to the effect that in view of appellant having neither challenged nor raised any plea on the question of default in his reply Exhibit 2, it is presumed that he had availed the benefit of first default earlier. 16. Thereafter, the appellant had neither tendered the arrears of rent to the plaintiff-landlord nor deposited the same in the Court in compliance of the requirements of Section 19-A of the Act of 1950. Hence the question of extension of any benefit of first default to the appellant would not arise in this case. 16. Thereafter, the appellant had neither tendered the arrears of rent to the plaintiff-landlord nor deposited the same in the Court in compliance of the requirements of Section 19-A of the Act of 1950. Hence the question of extension of any benefit of first default to the appellant would not arise in this case. I am of the view that the said finding recorded by the trial Court and which has been affirmed by the First Appellate Court is not open to challenge in this appeal and is accordingly upheld. .17. Asregards the second ground of eviction i .e. the bona fide requirement and necessity of the landlord to occupy the shop premises for the benefit of his son, the trial Court on due appreciation of evidence has decreed the plaintiff s suit for eviction. The said findings have also been affirmed by the First Appellate .Court. Both the Courts below having thus concurrently held that the plaintiff is in bona fide need to occupy the suit premises in question which is required by him for allowing his son to run his business therein. The finding to this effect as recorded by the trial Court in para 13 of its impugned Judgment and decree as confirmed by the First Appellate Court, in my considered view is not open to challenge in the present second appeal. 18. The learned Counsel for the appellant contended at the bar that the First Appellate Court has not examined the aspect of partial eviction of the premises in question. In my view, this contention is not tenable in view of the positive finding having been recorded by the First Appellate Court in para 14 of its impugned Judgment wherein, it has been specifically observed that the length and width of the shop is only 5 feet and 9 inches hence, in my view, it cannot be held to be divisible in any circumstances. I am further of the view that there is no reason to disbelieve or to dispute the bona fide need of the respondent-landlord on the question of comparative hardship which is much greater than that of the appellant who is in possession of alternative accommodation which is available to him for his occupation and business as per the evidence on record. 19. 19. The law is so well settled that this Court in second appeal will not go into the question of evidence alone unless some substantial questions of law are involved for consideration of this Court. I am fortified in my observation from the Judgment of the Apex Court in Navaneethammal vs. Arjuna Chetty, 1996 (6) SCC 166 : (AIR 1996 SC 3921) wherein, the Apex Court has laid down the parameters within which the High Court should exercise its jurisdiction in dealing with and deciding the second appeal observing to the following effect (at page 3522 of AIR):-“Interference with the concurrent findings of the Courts below by the High Court under Section 100, CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappropreciate the evidence just to replace the findings of the lower Courts. In the present case the lower appellate Court fairly appreciated the evidence and confirmed the conclusion of (his trial Court that suit was not barred by limitation. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate Court was based on no material.” .20. Prima-facie, I am of the considered view that it is well settled that the landlord is the best judge of his/her bona fide need and the same has to be objectively considered and appreciated in the light of the cogent, reliable and satisfactory evidence which the landlord has to establish on the record. Prima-facie, I am of the considered view that it is well settled that the landlord is the best judge of his/her bona fide need and the same has to be objectively considered and appreciated in the light of the cogent, reliable and satisfactory evidence which the landlord has to establish on the record. If the suit premises presently in occupation of the landlord is grossly insufficient for use and occupation for him and his family members, then there is no reason as to why the suit for eviction should not be decreed in the light of settled position of law and also keeping in view that even on comparative hardship which has been objectively considered by both the Courts below on due appreciation of evidence and I am of the considered view that no substantial question of law arises for consideration of this Court as per requirements of Section 100(1) of the Code of Civil Procedure which provides, as under :-- .“Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.” 9.21. From the perusal of the grounds urged by the appellant in the memo of appeal as well as the contentions advanced by the learned Counsel for the parties at the bar, I do not find any ground which may impel this Court to express its views contrary to the decisions rendered by the Courts below and hence the concurrent findings recorded by the Courts below are not open to challenge in this appeal. .22. I am also fortified in my observations from the following Judgment s of Supreme Court as well as High Courts. In Ramesh Kumar vs. Kesho Ram, AIR 1992 SC 700 :(1992 AIR SCW 336) the Apex Court observed, as under at page 702 of AIR:-- .“The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of thus. But this is subject to an exception. In Ramesh Kumar vs. Kesho Ram, AIR 1992 SC 700 :(1992 AIR SCW 336) the Apex Court observed, as under at page 702 of AIR:-- .“The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of thus. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a ‘cautious cognizance’ of the subsequent changes of fact and law to mould the relief” 10.23. In TejKumar vs. Addl. District and Sessions Judge, Hardwar, 1995 (1) RCR 206, the Allahabad High Court in a writ petition filed by the landlord under Article 226 of the Constitution for eviction of the tenant arising out of an order passed in eviction proceedings against the tenant by the Authority constituted under the said Act with reference to the proceedings initiated by the landlord under Section 21(1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 relating to bona fide requirement of the landlord for occupation of non-residential premises to start his independent business observed as under:- “Each adult member of family is entitled to work for his own independent existence - Release of accommodation can be granted lo provide a source to augment the income of a family member so that he may lead decent life and cater to the needs of hig growing family.” 24. This Court while dealing with the question of partial eviction in Vishvapariya Nagar vs. Immamuddin Tailor Master, D.N.J. (Raj) 482 (sic) where the dispute before this Court was regarding a shop in question which was only 8 x 9 feet and there was no alternative shop available to the landlord for his occupation observed that questions of partial eviction is no longer res integra where the tenanted premises is not divisible in nature. 25. I have examined the ratio of aforesaid decisions with reference to the questions of law raised in the present appeal. 25. I have examined the ratio of aforesaid decisions with reference to the questions of law raised in the present appeal. I am of the view that the ratio of the aforesaid decisions are frilly at traded to the instant case for the reason that in view of dire necessity and bona fide need of the plaintiff landlord for his son for the purpose of opening a chemist’s shop medical shop being unemployed, the said need having been objectively examined by the Courts below, on due appreciation of evidence, their findings are consequently not open to challenge in this appeal and deserve to be upheld. 26. During the course of hearing, the learned Counsel for the appellant has requested that his client may be granted some reasonable time to handover the vacant and peaceful possession of the suit premises to the plaintiff-landlord. The learned Counsel forthe respondent has also agreed to this request keeping in view the fact that the suit premises in question has been under the tenancy of the appellant since the year 1974. The appellant tenant is accordingly directed to hand over vacant and peaceful possession of the suit shop premises to the respondent landlord on or before 29-4-1999. The requisite undertaking in this regard be also filed within two weeks from the date of receipt of certified copy of this Judgment . 27. As a result of the above discussion, I find no force in this appeal and the same is accordingly dismissed. The impugned Judgment & decree dated 9-7-1998 passed by learned District Judge, Karauli in Civil Regular Appeal No. 22/93 affirming the Judgment and decree dt. 27-7-1993 passed by Additional Munsif , Karauli in Civil Suit No. 45/87 is upheld.