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2002 DIGILAW 426 (RAJ)

Mahendra Ku. v. Kanwarlal

2002-02-18

PRAKASH TATIA

body2002
JUDGMENT : 1. Heard learned counsel for the parties. Perused the record. 2. By this appeal the defendant-tenant has challenged the judgment and decree of the trial Court dated 18th May, 1994 and the judgment and decree of the Appellate Court dated 13th April, 2002 by which the first appeal of the appellant was dismissed by the First Appellate Court. 3. The suit was filed by the plaintiff Kanwarlal for eviction against the defendant-appellant on the ground that the suit premises is required for the personal necessity of the family member of the plaintiff. The family member for whose necessity the eviction was sought is, admittedly, the real brother of the plaintiff. Both the courts below found the personal bona-fide necessity of the plaintiff for use of the premises for the family member of the plaintiff. Both the courts below decided the issue of comparative hardship in favour of the plaintiff. 4. Learned counsel for the appellant vehemently submitted that the very basis of the suit is wrong and the plaintiff has filed the suit by submitting that the disputed shop is the only shop of the plaintiff whereas the appellant-tenant obtained the copies of certain documents, which show that adjoining shop to the shop in dispute is the ownership property of the plaintiff. Defendant-appellant submitted an application under Order 41 Rule 27 CPC before this Court on 10th October, 2001 stating therein that after the decision by the First Appellate Court by judgment dated 13th July, 2001, the appellant- defendant obtained the certified copy of the license from the Municipal Board on 19th July, 2001 and wants to put this document in evidence. It is relevant to mention here that in entire application it has not been stated how and when the fact of having another shop by the plaintiff came to the notice of the defendant-appellant. The suit was filed in the year 1989. The trial Court decided the suit in the year 1994. Thereafter, the appeal remained pending for about more than six years and ultimately the First Appellate Court decided the appeal on 13th July, 2001. The suit was filed in the year 1989. The trial Court decided the suit in the year 1994. Thereafter, the appeal remained pending for about more than six years and ultimately the First Appellate Court decided the appeal on 13th July, 2001. From 1989 when the litigation was pending the defendant, who is in occupation of the shop in dispute and defendant, who wants to submit the document with respect to the adjoining shop after about 13 years by submitting application under Order 41 Rule 27 CPC without disclosing the material particulars in the application and without formulating any of the grounds provided under Order 41 Rule 27 CPC, the application of the appellant then the same deserves to be dismissed only on the ground of delay. The Order 41 Rule 27 CPC permits taking on record the evidence when the party after due diligence failed to produce the evidence. Here in this case, if application itself is looked into, filed by the appellant under Order 41 Rule 27 CPC, then it appears that the appellant wanted to suppress the facts, rather to disclose the facts, otherwise there was no reason for appellant for not disclosing the date on which he got the knowledge of the documents, which now he wants to produce. The appellant submitted an affidavit in support of the application and the requirement of affidavit is that the deponent should not only disclose the true and correct facts but should also not hide anything in the affidavit. Therefore, there is no force in the application under Order 41 Rule 27 CPC. 5. The respondent submitted reply to the application under Order 41 Rule 27 CPC upon which another application under Order 41 Rule 27 CPC was filed by the appellant wherein instead of making out any case under Order 41 Rule 27 CPC, the defendant-appellant raised several new questions of facts, which appear to be nothing but the reply to the reply filed by the respondent under Order 41 Rule 27 CPC. 6. Learned counsel for the appellant relied upon number of judgments under Order 41 Rule 27 C.P.C. One of the judgments is delivered in the case of Parbhudayal v. Ramswaroop and others, reported in 1988 (2) RLR 36 wherein this Court held that the Appellate Court has ample power to allow application under Order 41 Rule 27 CPC. 6. Learned counsel for the appellant relied upon number of judgments under Order 41 Rule 27 C.P.C. One of the judgments is delivered in the case of Parbhudayal v. Ramswaroop and others, reported in 1988 (2) RLR 36 wherein this Court held that the Appellate Court has ample power to allow application under Order 41 Rule 27 CPC. Another judgment relied upon by the learned counsel for the appellant is delivered in the case of Official Assignee and another v. Subhkaran reported in AIR 1974 (Raj.) 49 wherein it was held by the Division Bench of this Court, that the document being a public document and the genuineness being beyond doubt, the appellate court can permit it to be taken in evidence. It is very clear from the above two judgments that this Court has recognised power of appellate court to accept additional evidence under Order 41 Rule 27 CPC, but at the same time the law is very clear on the point that the additional evidence cannot be permitted to fill up lacuna lying knowingly or negligently by the parties. 7. Learned counsel for the respondent relied upon the judgment delivered in the case of N. Kamalam (dead) and another v. Ayyasamy and another, reported in 2001 WLC (SC) Civil 621 : (2001) 7 SCC 503 . 8. As observed above neither there is a sufficient reason in the application nor any ground has been made out by the appellant for not filing the above document either before the trial Court or before the First Appellate Court. No sufficient cause has also been disclosed. Therefore, even if a liberal view is taken even then the appellant cannot be permitted to produce evidence under Order 41 Rule 27 CPC. 9. It is also relevant to mention here that in both the applications under Order 41 Rule 27 CPC even it is not a case of the appellant that the shop in dispute is lying vacant in possession of the respondent-landlord, therefore, also the documents are having no relevancy at all. 10. 9. It is also relevant to mention here that in both the applications under Order 41 Rule 27 CPC even it is not a case of the appellant that the shop in dispute is lying vacant in possession of the respondent-landlord, therefore, also the documents are having no relevancy at all. 10. Learned counsel for the appellant vehemently submitted that the suit should not have been decreed as it has been filed for the necessity of the brother of the plaintiff and brother of the plaintiff cannot be treated as a member of the family of the plaintiff for which learned counsel for the appellant relied upon the judgment of this Court delivered in the case of Surya Prasad v. Ganga Ram, reported in 1991 (2) RLR 641 wherein this Court held that ordinarily a younger brother would not be a member of the family of his elder brother and unless he is supported by the elder brother, he cannot be said to be dependent on elder brother. In that case, this Court observed that there is no finding that plaintiff is supporting his younger brother Roopnarayan and this Court observed that before this Court also it was not disputed that at this stage Roopnarayan is employed. Whereas in other judgments relied upon by the learned counsel for the appellant reported in the case of 1999 DNJ 153 and judgment referred in the First Appellate Court's judgment 1981 WLN (UC) 401 it is clearly held that the family member in the context of Rajasthan Premises (Control and Eviction) Act, 1950 be given a wider meaning and it cannot be limited. When the judgment relied upon by the learned counsel for the appellant is with respect to the fact of a particular case wherein this Court held that ordinarily, it cannot be held that brother is member of family then that decision was on the facts below and the appellate Court very categorically held that as per the evidence produced, the appellant is having joint Hindu family including his father and brother and it was also observed by the First Appellate Court that the brother of the plaintiff was also doing business with his own brother (plaintiff) and, thereafter, he joined the service because the shop was not available. In view of this fact, it cannot be held that the plaintiff's brother is not the member of the family and it cannot be held that plaintiff's brother was so independent from his brother that his necessity cannot be treated as necessity of the family. 11. Learned counsel for the appellant further submitted that the point of partial eviction has not been decided by the courts below and, therefore, the matter is required to be remitted back to the trial Court for deciding the issue of partial eviction. Learned counsel for the appellant relied upon the judgments derived in the case of Mohammad Hafiz v. Smt. Kamla Ben, reported in 1994 DNJ (Raj.) 659, Bharatpur Wholesale Sahakari Uphokta Bhandar Limited v. Sohan Lal; LRs of Ibrahim and others v. LRs of Fakruddin and others, reported in 1997 (2) RLW Raj. 768, Purshotam Lal v. Ganesh Lal Etc. reported in 1998 WLC (Raj.) UC 92 and the judgment of the Hon'ble Apex Court delivered in the case of Rahman Jeo Wangnoo v. Ram Chand and others, reported in AIR 1978 SC 413 . According to the learned counsel for the appellant when Hon'ble Apex Court has held that even in absence of a specific pleading the issues are required to be decided as held in the AIR 1978 Supreme Court 413. 12. This Court examined the question of partial eviction in recent judgment delivered in the case of Anandilal v. Smt. Sarju Devi and others, reported in 2000 (4) WLC (Raj.) 547 and also considered the law laid down by the Hon'ble Apex Court in AIR 1978 SC 413 and 14 other judgments and, thereafter held that after litigating the suit for around 16 years and without even inviting attention of the courts below, on this question of partial eviction, the tenant approached this Court as if it is his indefeasible right to sleep over the issue for an indefinite time, and then put this Court in a helpless condition, to simply bow to the dictates of the tenant to frame an additional issue and give opportunity to the parties to lead evidence, and thereby practically reopen the specific part of the trial and after considering this aspect of the matter this court refused to accept the plea of the tenant. Here in this case, it was alleged by the learned counsel for the appellant, looking to the size of the shop and when the plaintiff himself has stated in the plaint itself that the shop has way on the two sides of the shop then this shop can be partitioned and the need can be satisfied of both the parties. This plea was available to the appellant as back as in the year 1989. This plea was available to the appellant at least when the appellant preferred the appeal in the year 1984, when the as was settled on the point. If the contention of learned counsel for the appellant is accepted that this is a mandatory requirement of law to remit in all cases irrespective of any sort of conduct of the party, but I perused the memo of appeal wherein the appellant did not raise any grievance and has not challenged the judgment and decree of the trial Court on his ground nor sought any relief by putting some facts before the appellate court that the shop in dispute can be partitioned in such a manner. The appeal remained pending for about more than six years. The appellant was fully conscious of this fact but did not choose to take this ground by filing memo of appeal or by seeking permission to raise this ground as provided for raising the ground before the first Appellate Court. Therefore, the law laid down by this Court in the case of Anandilal v. Surja Devi (supra) is fully applicable to the fats of this case. Therefore, the contention of the appellant deserves to be rejected. 13. It is further relevant to mention here that the First Appellate Court examined the question of partial eviction and, thereafter, rejected the contention of the appellant in its judgment. Therefore, this is not a case of total non-consideration of point of partial eviction. Even if the First Appellate Court records a finding of fact for which a different view may be taken even then that cannot be a ground for interference in the second appeal because it is not a substantial question of law in the facts of this case. Therefore, I do not find any force in the submission of learned counsel for the appellant. 14. Hence, there is no force in this second appeal and the same is hereby dismissed. 15. Therefore, I do not find any force in the submission of learned counsel for the appellant. 14. Hence, there is no force in this second appeal and the same is hereby dismissed. 15. At this stage, learned counsel for the appellant submitted that the appellant may be granted some time to vacate the premises for which learned counsel for the respondent has no objection. Therefore, it is ordered that appellant shall hand over vacant possession of the premises in dispute on or before 31st August, 2002, and the appellant shall make/deposit the payment of rent before the trial Court within 15 days of each succeeding month and appellant shall furnish the undertaking for compliance of this Court before the trial Court within one month from today. In case of default in furnishing undertaking or depositing the monthly rent, the appellant-landlord shall be entitled to execute the decree forthwith.Appeal dismissed.