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2002 DIGILAW 810 (RAJ)

Firm Mool Chand Megh Raj & Co. v. Amrit Lal

2002-04-19

N.P.GUPTA

body2002
JUDGMENT : 1. This appeal has been filed by the defendant against the concurrent judgments of the two learned Courts below in a suit for eviction from the suit shop. 2. The plaintiff respondent filed the present suit for eviction on 30.11.1992 inter-alia on the ground of default in payment of rent, reasonable and bona-fide necessity of the plaintiff of course also pleading the elements of comparative hardship and partial eviction 3. The allegations are that the defendant has committed default in payment of monthly rent since 31.12.89. Regarding bona-fide requirement it was pleaded that the plaintiff's brother Girdhari Lal carries on the business of utensils in the adjoining shop, the plaintiff has completed his education and has learnt the business with his brother. According to the plaintiff, since the brother's shop is small the business cannot be expanded apart from the fact that Girdhari Lal himself also has a big family. It was also pleaded that the plaintiff has requisite financial resources, and has no other shop. Regarding defendants it was pleaded that they are of sound financial condition and have other shops in good market. Looking to the size the non-feasibility of partial eviction was pleaded. According to the plaintiff he had purchased the shop from the erstwhile owner Savitri Devi by registered sale deed 26.6.89, and that defendants were pleaded to be the existing tenants having been inducted by Savitri Devi. 4. The defendant in the written statement pleaded to have paid the rent up to Jeth Sudi Chhath Samvat 2045. Regarding default it was pleaded that the plaintiff did not receive rent despite tender and also declined to issue receipt. Other pleadings of the plaintiff regarding grounds of eviction were denied. In additional pleadings, the theory of purchase of premises by the plaintiff was denied on the ground that the consideration for the purchase is so grossly inadequate that the transaction appears to be "Farji," and that the present suit has been filed by the plaintiff in collusion with the erstwhile owner Savitri Devi. In additional pleadings, the theory of purchase of premises by the plaintiff was denied on the ground that the consideration for the purchase is so grossly inadequate that the transaction appears to be "Farji," and that the present suit has been filed by the plaintiff in collusion with the erstwhile owner Savitri Devi. Regarding comparative hardship it was pleaded that the plaintiff is a member of joint Hindu family of his father and brother, plaintiff does not have financial resource or experience, the defendants's shop is an established one for the last more than 50 years, and substantial amounts outstanding in the customers will be lost in the event of eviction, the defendant cannot get any other shop, and thus he will be rendered jobless. 5. On these pleadings of the parties, the learned trial court framed 7 issues including that of relief. Issues No. 2, 3 and 4 related to the question of bona-fide necessity, comparative hardship and partial eviction, issue No. 6 comprehended the question as to whether the sale by Savitri Devi is fictitious, and collusive, while issue No. 1 related to the default. 6. After completing the trial the learned trial court found the defendant to be the defaulter but then in view of the provisions of Section 13(6) decree for eviction was not passed on that ground by giving the benefit to the defendant. The other three issues No. 2, 3, and 4 were all decided against the appellant. Learned trial court after appreciating the entire evidence of the parties found that the plaintiff has acquired the experience of the business of utensils of the shop of his brother, and that he wants to carry on the business of utensils for which he has requisite financial resources. It was also found that in view of the judgments of Hon'ble the Supreme Court, the plaintiff is the best judge of his requirement. Regarding comparative hardship since it is contended on the side of the defendant that in cases relating to eviction from commercial premises, availability of other premises is not relevant, and therefore this aspect cannot be seen. It was also found that in view of the judgments of Hon'ble the Supreme Court, the plaintiff is the best judge of his requirement. Regarding comparative hardship since it is contended on the side of the defendant that in cases relating to eviction from commercial premises, availability of other premises is not relevant, and therefore this aspect cannot be seen. Of course, the parties have led voluminous evidence about the defendant having various other shops in different markets, and about the plaintiff to be not having any other shop, and then found that the plaintiff would suffer comparatively greater hardship in case the decree for eviction is not passed. Thus this issue was also decided in favour of the plaintiff. Regarding partial eviction it was held that looking to he small size of the shop, partial eviction is not possible. Detailed finding was given on issue No. 6 also. It was contended by the defendant in connection with this issue that suit was filed after long delay since the purchase of the premises inasmuch as the premises were purchased on 26.6.89 while the suit was filed on 30.11.92, the plaintiff had opened his independent saving bank account on 30.9.93 and got prepared his ration card in the year 1994. On the side of the plaintiff this contention was replied by giving out that though the premises were purchased on 26.6.89 but then the document for sale was impounded and was returned on 26.2.92 only and thereafter notice for eviction was given and on receiving no reply the suit has been filed. Taking into account the contention it was found that when the document was impounded, valuation of the shop was assessed and the document was found to be executed on the proper requisite stamps, thus it was held that no adverse finding can be recorded against the plaintiff on account of inadequacy of consideration. Regarding ration card etc. it was held that in the absence of any other material to show collusion, no conclusion can be arrived at in favour of the defendant, and thus the issue was decided against the defendant. Regarding ration card etc. it was held that in the absence of any other material to show collusion, no conclusion can be arrived at in favour of the defendant, and thus the issue was decided against the defendant. The learned trial court also noticed the contention of the plaintiff that by disputing the title of the plaintiff, the defendant has rendered himself liable for eviction on the ground of denial of title of the landlord, and after considering this argument also it was held that within the meaning of latest judgments of Hon'ble the Supreme Court the denial was not found to be clear and unambiguous. As a result of the aforesaid finding the suit for eviction was decreed. 7. Aggrieved, the defendant filed an appeal and the learned lower appellate court itself again decided all the issues by re-appreciating the evidence and affirmed the finding recorded by the learned trial court on all the issues. 8. Assailing these judgments, the finding of reasonable and bona-fide necessity was challenged only on the ground that the sale price of the shop is grossly inadequate, and that there is delay in filing the suit since the date of purchase. Suffice it to say that this aspect has been considered in detail by the learned courts below and I do not find any ground to take a different view in my second appellate jurisdiction. 9. Then the findings on the question of comparative hardship were strenuously assailed by contending that the learned courts below, practically have not all recorded any finding on this question, and has decided the issue simply because the plaintiff's bona-fide necessity has been found. According to the learned counsel merely because the plaintiff's bona-fide necessity has been found he does not ipso facto become entitled to the decree for eviction. It was contended that the considerations constituting hardship in favour of the defendant are writ large, like that he has an established business, he has no other shop, he will suffer the loss of good will, the defendant has made full investment, his business will be closed as he is not in a position to get any other shop, the amounts outstanding in the customers would become bad debts. While also far as the plaintiff is concerned, he is yet to start the business, he owes nothing from any person, there is no question of goodwill of the business of the plaintiff, the plaintiff does not have sufficient funds, the shop in question is grossly inadequate for the plaintiff's business and that the plaintiff has other shop. These aspects having not been considered by the learned courts below, the impugned decree is liable to be set aside. 10. Controverting these contentions it was contended on the side of the respondents that the finding on the questions of hardship is a pure finding of fact and cannot be assailed in second appeal unless it is perverse or not supported by any evidence. 11. In order to appreciate the submission of the learned counsel for the plaintiff, I called upon the learned counsel for the appellant, in the first instance, to point out the evidence that may be available on record having any bearing whatever on all or any of the above considerations, so that firstly it may be found as to whether the alleged consideration is proved as a fact, secondly I called upon the learned counsel to thereafter point out the legal position viz. that such of the circumstances, as may be established, either are relevant for the purpose of deciding the question of comparative hardship, or from those circumstances the balance of comparative hardship is changed against the plaintiff. 12. To this the learned counsel objected on the ground that it is for the learned trial Court to appreciate the evidence, and this Court cannot go into the evidence, as thereby the appellant's right of appeal is lost, and therefore, if the evidence is required to be appreciated, the matter be remanded to the learned trial Court. Another objection raised was that the defendant is entitled to lead evidence on the question of comparative hardship, and therefore, even for this purpose the matter is required to be remanded. Another objection raised was that the defendant is entitled to lead evidence on the question of comparative hardship, and therefore, even for this purpose the matter is required to be remanded. Yet another objection raised was that even if this Court finds that there is no evidence yet it is the obligatory duty of the courts to direct itself on the relevant considerations of comparative hardship, and then to give a finding as contemplated by Section 14(2) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, hereinafter to be referred to as 'the Act', and since the learned courts below have decided this question simply on the basis of bona-fide necessity of the plaintiff having been found, the finding is bad, and the matter is required to be remanded to the learned trial court for recording a fresh finding. A few judgments were also relied upon by the learned counsel for the appellant to contend that it is obligatory duty of the Court even in absence of any evidence to decide the question of comparative hardship, and in the event of failure the matter has to be remanded back. 13. However without prejudice to his aforesaid objection, when called upon, the learned counsel for the appellant could not point out an iota of evidence that may have been led to prove all or any of the above circumstances. Faced with that situation, learned counsel desired me to take judicial notice of these facts by considering, what is called "the prevailing circumstances and market conditions" and it should be assumed that the defendant has the established business, his outstanding (sic) would be lost and goodwill will also be lost. 14. Controverting these submissions, learned counsel for the respondent maintained that both the learned courts below have decided the question of comparative hardship in favour of the respondent, and that being a pure finding of fact, is not open to challenge in the second appeal. It was also contended that the tenant had not led any evidence to establish any of the factors tilting the balance of comparative hardship in his favour. It was also contended that the tenant had not led any evidence to establish any of the factors tilting the balance of comparative hardship in his favour. It was also contended that both the parties had led evidence on the question of availability of alternative accommodation to both the parties, inasmuch as the plaintiff have led evidence to the effect that no other alternative accommodation is available to the plaintiff, while the defendant has many other accommodation available, in the important markets of the town. On the other hand, the defendant had led evidence to the effect that he has no other shop, On pointed suggestion about availability of a three door shop in front of the defendant's shop near the flour mill, the defendant gave out the same to be godown. However, he admitted that the said premises is in his possession. According to the learned counsel visualising the weakness of the defendant, on the anvil of availability of alternative accommodation, it was the defendant who advanced an argument that in a suit for eviction from commercial premises the question of availability of alternative accommodation, either with the plaintiff or with the defendant cannot be made a basis for consideration of the question of comparative hardship. And since no other factor has been proved, learned counsel reiterated that the finding of comparative hardship cannot be, and in any case is not required to be interfered with in the present second appeal. 15. I have considered the rival submissions, and have examined the impugned judgments, and have also gone through the evidence of the parties, with the assistance of the learned counsel for the appellant who read out the statements of the witnesses to me. 16. Dealing with the legal objection of the learned counsel for the appellant about requirement of the matter being remanded to the learned trial Court, I may observe that strong reliance was placed on a judgment of this Court in Narsingh Dass v. Jethmal, reported in (1988) 1 RLR 656. Suffice it to say firstly that the case of Narsinghdass was the case relating to the question of partial eviction. That apart in that case the view taken is other way round, inasmuch as it was held that the proviso to Section 14(2) does not require the Court to manufacture evidence to decide the question of partial eviction. Suffice it to say firstly that the case of Narsinghdass was the case relating to the question of partial eviction. That apart in that case the view taken is other way round, inasmuch as it was held that the proviso to Section 14(2) does not require the Court to manufacture evidence to decide the question of partial eviction. It was held that the parties have to produce necessary evidence to prove it. Another judgment relied upon is Purushottam v. IV Addl. Dist. Judge, reported in AIR 1979 SC 1520 but then on reading of that judgment I do not find it to be of any relevance so far as the question involved in the present case is concerned. 17. For appreciating the controversy, I may gainfully reproduce the provisions of Section 14(2) of the Act which reads as under:- "(2) No decree for eviction on the ground set forth in clause (h) of sub-section (1) of Section 13 shall be passed if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only." A look at this sub-section shows that it comprehends both the questions of comparative hardship so also the question of partial eviction. Obviously the requirement of pleading or proof with respect to either of these questions, has to be taken to be identical, i.e. if pleading and proof is required for partial eviction, the same is also required for the question of comparative hardship, likewise if it is not required for the former, obviously it is not required for the latter either. Considering the case law from this stand point, apart from the case of Narsingh Dass, 1998 (1) RLR 656 referred to by the learned counsel for the appellant, I may also refer to yet another judgment of this Court in Bhanwarlal v. Tikam Chand, reported in 2000 (3) RLR 369 : AIR 2000 Raj. 413 . This Bhanwarlal's case also related to the question of partial eviction. 413 . This Bhanwarlal's case also related to the question of partial eviction. In that case also there was no material placed on record on the side of the defendant, though the plaintiff had deposed that partial eviction is not possible and was a defendant's appeal, wherein the precise submission made was that an additional issue was required to be framed and the matter was required to be remitted to the learned trial Court. Dealing with the contention, I had gone through all previous judgments of this Court, including that of Narsingh Dass's case and following the Division Bench decision of this Court in Lal Chand v. Shyamlal in S.B. Second Appeal No. 19/92, which was in turn relied upon by this Court in Rishupriya Nagar v. Immamudin reported in 1996 (2) RLR 503, it was held that it is not open to the appellant to contend that it is necessary in all cases to frame an issue and remit the matter to the trial court for deciding afresh. 18. True it is that on the face of the language of Section 14(2) the Court has to record finding on the two aspects comprehended by the said sub-section, but then the parties have to take appropriate pleadings and to prove the same by leading evidence. I am mindful of the cases where there were no pleading and no finding was recorded, this Court remanded the matters with direction to, some times allow the parties to amend the pleadings, sometimes by framing additional issue, some times by directing the parties to lead evidence, and so on, but then all those cases were cases where suits had been instituted either before enactment of Section 14(2), which was introduced in 1975, or were the suits which were instituted shortly thereafter. In the present case the suit has been filed, as found above on 30.11.92 i.e. after more than 17 years of the enactment of Section 14(2). That apart, the plaintiff has clearly taken pleadings in the plaint about the defendant being of sound financial condition, and having other premises in good markets, and therefore, would not suffer in the case of decree for eviction is passed. That apart, the plaintiff has clearly taken pleadings in the plaint about the defendant being of sound financial condition, and having other premises in good markets, and therefore, would not suffer in the case of decree for eviction is passed. As against this the defendant had taken the pleading to the effect that the defendant is in occupation of the shop for the last more than 50 years, thousand of rupees are owed to him by various persons, he cannot get another shop, and that in the event of eviction being decreed the aforesaid amount would become debts and he would become jobless. Thus it is clear that both the parties have taken the pleadings about the question of comparative hardship. 19. It is in this background that the defendant has not led any evidence regarding the factors pleaded by him. May be that plaintiff has also not led any evidence about the defendant's sound financial position. 20. It is in the background of aforesaid circumstances, that firstly the question is as to whether I can, or I am required to look into the material on record and decide the question of comparative hardship afresh. Admittedly it is nowhere the case of any of the parties that they were not given any sufficient opportunity by the learned trial Court to lead evidence. In that view of the matter it has but to be assumed that whatever evidence the parties desired to lead has already been led. Accordingly, assuming the contention of the learned counsel for the appellant, about the learned Courts below having not considered the material, for deciding the question of comparative hardship, and having decided it merely on the ground of plaintiff's bonafide necessity having been accepted, in view of the provisions of Order 41, Rule 24, C.P.C., I may determine the question. And since the evidence led on record is available with the learned counsel for appellant, and has been read over to me I proceed to decide the same. 21. A resume of evidence has already been recapitulated above, wherefrom it is clear that the defendant has not led any evidence therefore I am to deal with the contention of the learned counsel for the appellant to the effect that the plaintiff has failed to prove the comparative hardship. 22. 21. A resume of evidence has already been recapitulated above, wherefrom it is clear that the defendant has not led any evidence therefore I am to deal with the contention of the learned counsel for the appellant to the effect that the plaintiff has failed to prove the comparative hardship. 22. Suffice it at the outset to say that the language of Section 14(2) is that "no decree.. shall be passed if the Court is satisfied... greater hardship would be caused by passing the decree then by refusing to pass it." Thus on the face of it, it is in cases where the Court finds the bona-fide requirement and intends to decline the decree for eviction, then it has to be satisfied that greater hardship would be caused by passing the decree, than by refusing to pass it, it is in this background that I may refer to the judgment of Hon'ble the Supreme Court in Bega Begum v. Abdul Ahmed Khan, reported in AIR 1979 SC 272 wherein, in para 19, while reversing the finding of the High Court on question of comparative hardship, and considering the contention about the evidence led by the defendant, regarding the main source of the income of the defendant being the hotel business carried on by them in the premises, and in the event of their being thrown out, their being not likely to get any alternative accommodation, it was held as under:- "the High Court has accepted the case of the defendant on this point but does not appear to have considered the natural consequences which flow from a comparative assessment of advantage or disadvantages of a landlord and tenant if a decree for eviction follows. It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed... This by itself would not be a valid ground for refusing the plaintiff a decree for eviction." 23. Then in para 20 it was held that "it seems to us that in deciding this aspect of the matter each party has to prove its relative advantage and disadvantages and the entire onus cannot be thrown on the plaintiff to prove that lesser disadvantages would be suffered by the defendant and that they were remediable." 24. Then in para 20 it was held that "it seems to us that in deciding this aspect of the matter each party has to prove its relative advantage and disadvantages and the entire onus cannot be thrown on the plaintiff to prove that lesser disadvantages would be suffered by the defendant and that they were remediable." 24. Then relying upon some previous judgments, in para 21 onwards the finding was recorded to the effect that, "it has been established that landlords have not only genuine requirements to possess the house but it is necessary for them to augment their income and maintain themselves properly. Being the owners of the house they cannot be denied eviction and be compelled to live below the poverty line merely to enable the respondents to carry on their flourishing hotel business, at the cost of the appellants. This shows the great prejudice that will be caused to the plaintiff if their suit is dismissed." Regarding the long occupation of the defendant, it was also considered that the defendant in that case had been running the hotel for the last 30 years, from this it was assumed that during these years, the defendant must have made sufficient profits, and is a sufficiently long period for which the plaintiffs have been deprived of the possession with the result that there is no equity in favour of the defendants for continuing in possession any further. The question of availability of alternative accommodation was also consideration by Hon'ble the Supreme Court. 25. Thus even this one single judgment in Bega Begum's case by itself is sufficient to negative all contentions raised on behalf of the appellant, as the considerations put forward by the appellant are no better than, "natural consequences." 26. The question of availability of alternative accommodation was also consideration by Hon'ble the Supreme Court. 25. Thus even this one single judgment in Bega Begum's case by itself is sufficient to negative all contentions raised on behalf of the appellant, as the considerations put forward by the appellant are no better than, "natural consequences." 26. That apart I may also refer to and rely upon few more recent judgments of Hon'ble Supreme Court being Siddalingamma v. Mamtha Shenoy, reported in (2001) 9 JT (SC) 268 : AIR 2001 SC 2896 , wherein even in a case where the suit was filed by the owner and landlady on the ground of bona-fide necessity, comprising of the husband suffering from asthma and respiratory problem, requiring to take oxygen from the cylinder, and for medical treatment was required to be taken from Bettalasoor to Bangalore, the said husband having died during pendency of the litigation, and the suit was sought to be continued on the ground of landlady not maintaining good health, and having been referred by the doctor at Bettalasoor for treatment to be taken at Bangalore, and the suit premises being required, "in the interest of better treatment of hers" Hon'ble the Supreme Court upheld the element of comparative hardship. Likewise in G.C. Kapur v. Nand Kumar Bhasin, reported in 2001 AIR SCW 4841, where the landlord's son required the suit premises for starting his own business, notwithstanding the fact that the franchise available with the son had been withdrawn by BITS, the requirement was upheld as the son was possessed of the technical know how having completed technical education, and considering the fact of tenant having other accommodation, while the plaintiff having none to start the proposed business, it was held that landlord would suffer hardship if eviction is refused. 27. Following the letter and spirit of aforesaid two judgments, and after even re-appreciating the entire evidence of the parties, in my view, the defendant would not be put to unnatural hardship so as to tantamount to greater hardship in the event of a decree for eviction being passed, rather on the other hand the plaintiff would suffer greater hardship in the event of eviction being denied. Thus, even after re-appreciating the entire evidence, I am not inclined to interfere with the findings on the question of comparative hardship as recorded by the learned Courts below. 28. Thus, even after re-appreciating the entire evidence, I am not inclined to interfere with the findings on the question of comparative hardship as recorded by the learned Courts below. 28. As a result of the aforesaid discussion, it is clear that the second appeal does not involve any substantial question of law, and is required to be dismissed summarily. And the same is accordingly dismissed summarily.Appeal dismissed.