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1998 DIGILAW 1153 (RAJ)

Baluram v. Heeralal

1998-11-05

MOHD.YAMIN

body1998
JUDGMENT : 1. In this second appeal learned counsel for the appellants and the learned counsel for the respondents (who has appeared after filing caveat) were heard. 2. The facts may be narrated as follows : There is a shop situated at Mount Abu which was let out to the appellants' father on a monthly rent of Rs. 40/-. Later on standard rent was fixed at the rate of Rs. 80/- per month. Suit for its eviction was filed on the grounds of default and personal bonafide necessity. The suit was dismissed by the trial Court but when the landlord preferred appeal before the learned Additional District Judge, Abu Road, same was allowed and a decree for eviction was passed. The appellants submitted that the trial Court has come to the conclusion that the witnesses were liers and, therefore, the appellate Court has committed illegality in reversing the findings. He also submitted that according to Order 41 Rule 31 CPC the appellate Court was required to determine the points but the appellate Court has not done so, therefore, the appeal should be remanded for decision by the appellate Court again. In support of his argument he relied on 1997 (2) RLW 810, Khetu Lal v. Narsingh Das and others and 1997 (2) RLW 986, Smt. Patu and others v. LRs. of Dau Lal. He submitted that the finding of the trial Court was reversed by the appellate Court and in such a case the reasons given by the trial Court for its finding must be considered by the appellate Court. For this proposition reliance has been placed on AIR 1995 SC 1607 , S.V.R. Mudaliar (dead) by LRs. and others v. Mrs. Rajabu F. Buhari (Dead) by LRs. and others. It was further submitted that when the lower appellate Court had over-looked a very material part of evidence bearing on the question of bonafide requirement of landlord, the finding of fact arrived at ignoring important and relevant evidence is bad in law. In support of the aforesaid contention learned counsel relied on AIR 1976 SC 2229 , Damadilal and others v. Parashram and others. It was further argued that when the lower appellate Court in arriving its conclusion ignored important evidence on record, its conclusion is not binding in second appeal. Reliance was placed on AIR 1968 SC 466 , Smt. Sonawati and others v. Sri Ram and another. It was further argued that when the lower appellate Court in arriving its conclusion ignored important evidence on record, its conclusion is not binding in second appeal. Reliance was placed on AIR 1968 SC 466 , Smt. Sonawati and others v. Sri Ram and another. Relying on AIR 1963 SC 1279 , Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and others, it was contended that in second appeal decision of first appellate Court is not binding when the first appellate Court reached after placing the onus wrongly or based on no evidence or where there has been substantial error or defect in the procedure, producing error or defect in the decision of the case on the merits. Reliance has also been placed on 1987 (II) RLR 299, Khet Singh and others v. Hari Singh and others, and it has been submitted that when there are contrary findings of fact of two Courts below, in order to decide that which of the finding is correct, High Court has to consider reasons given by the trial Court as well as first appellate Court for taking their views of the matter and in such cases appreciation of evidence is permissible. 3. The points raised by the learned counsel for the appellants have been repelled by the learned counsel for the respondents. 4. So far as Order 43 Rule 31 CPC is concerned, it provides that judgment of the appellant Court shall be in writing and shall state the points for determination, the decision thereon, the reasons for the decision, and where the decree appealed from is revensed or varied, the relief to which the appellant is entitled. I have gone through the detailed judgment of the learned appellate Judge. He has formulated points for determination right from para No. 17 to para No. 22 (page No. 8 to page No. 14) and they are about factum of service of Vishnu Prasad, the point about personal and bonafide need of the landlord, the point about comparative hardship. By no stretch of imagination this judgment can be regarded which might be lacking on the points for determination. Therefore, the contention of the learned counsel for the appellants that the judgment lacks the point for determination, is not acceptable. 5. His next contention that when there are contrary findings of fact of two Courts below, it will be proper to reappreciate the evidence. Therefore, the contention of the learned counsel for the appellants that the judgment lacks the point for determination, is not acceptable. 5. His next contention that when there are contrary findings of fact of two Courts below, it will be proper to reappreciate the evidence. I will not subscribe to this view in view of a plethora of judgments of Hon'ble Supreme Court reported in AIR 1959 SC 57 , Deity Pattabhiramaswamy v. S. Hanymayya and others, in which it has been held that a Judge of the High Court has no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. In this judgment the practice of some Judges of the High Court disposing second appeals as if they were first appeals, has been deprecated. AIR 1963 SC 302 , V. Ramachandra Ayyar and another v. Ramalingam Chettiar and another, has been cited by the learned counsel for the respondents wherein it has been held that the High Court is not entitled to interfere in the second appeal on the finding of fact arrived by the lower appellate Court because the same is not elaborate as that of trial Court or that some of the reasons given by the trial Court are not expressly reversed. 6. Learned appellate Judge relying on AIR 1979 SC 272 , Mst. Bega Begum and others v. Abdul Ahad Khan (dead) by LRs and others, arrived to the conclusion that the plaintiff respondent bonafidely required the premises as he was the best Judge of his need. The dictum that the landlord is the best Judge of his requirement has been approved in Mrs. Meenal Eknath Kshirsagar v. M/s Traders and Agencies and another, 1996 DNJ (SC) 403, which was a case of eviction of a flat in Bombay. 7. The dictum that the landlord is the best Judge of his requirement has been approved in Mrs. Meenal Eknath Kshirsagar v. M/s Traders and Agencies and another, 1996 DNJ (SC) 403, which was a case of eviction of a flat in Bombay. 7. The contention of the learned counsel for the appellants that from the evidence the learned trial Judge came to the conclusion that the witnesses were liers was not reversed by the first appellate Judge, is of no help to the appellants because the learned appellate Judge has considered the statements of the witnesses in detail and has come to the conclusion that Vishnu Prasad was a temporary employee in a blind school w.e.f. 9.6.1982 while the suit was filed on 14.10.1979 and this fact could not have been written in the plaint. In 1979 Vishnu Prasad was out of employment and in 1982 he joined a temporary job because he was expecting that the suit premises would be vacated soon and then he would open a hotel in the suit premises. From the discussion of the evidence, the learned appellate Judge has found that the finding of the learned trial Judge that the witnesses had told lie is not correct. 8. I find that the learned Judge has reappreciated the evidence in details and has arrived to the conclusions which were just, proper and legal. There appears to be no ground to interfere in the judgment of the learned appellate Judge. He, after having reappreciated the evidence has decreed the suit by reversing the judgment of the trial Judge and I do not find any substantial question of law in this appeal. The appeal deserves to be dismissed. 9. In the end, learned counsel for the appellants submitted that since the tenant appellants require some time to evict the premises, they may be given six months time to vacate the premises. Counsel for the landlord did not oppose it. Therefore, I feel that six months time should be given to the tenant appellants to vacate the premises. 10. Consequently, the appeal is hereby dismissed. However, six months time from today is granted to the tenant appellants to vacate the suit premises. Counsel for the landlord did not oppose it. Therefore, I feel that six months time should be given to the tenant appellants to vacate the premises. 10. Consequently, the appeal is hereby dismissed. However, six months time from today is granted to the tenant appellants to vacate the suit premises. They will submit an undertaking before the trial Court that they will hand over vacant possession of the suit property on or before the date of expiry of six months from today and shall not part with possession of the suit property to any other person during this period and shall also continue to pay rent till they vacate the suit property. No orders as to costs.Appeal dismissed.