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2003 DIGILAW 1289 (RAJ)

LRs. of Ishwari Lal v. Hira Lal

2003-09-11

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. This is a second appeal in suit, which was filed in the year 1976 before the trial court for getting the possession of the rented premises on the ground of personal bonafide necessity. Almost 27 years have passed, yet the plaintiff is to get the relief in this case despite the fact that personal bonafide need of the plaintiff proved by the plaintiff more than 23 years ago when this court allowed the plaintiff's second appeal and the suit of the plaintiff-appellant was decreed. The reason for delay in getting the actual relief is that, due to change in law the court was required to examine question of comparative hardship before passing decree for eviction on the ground of personal bonafide need of the plaintiff and further to find out whether need of the plaintiff will be satisfied in case decree for the part of premises is granted in favour of the plaintiff. The issue of comparative hardship decided in favour of the plaintiff. Only point raised in this appeal is about the issue, whether plaintiff's need is for the part of the premises or plaintiff's need, needs whole of the premises. This second appeal is pending for determination of this point (which is no point in fact in the light of the stand taken by the appellant-defendant in this appeal). After about 21 years of filing appeal, this court is deciding a short question. Total period of original trial 2 years, in first appeal 6 months and further two years in trial after remand. Time taken in trial is four years six months. Time taken by the High Court is about 22 years. 3. The plaintiff's suit No. 134/76 was decreed by the trial court on 11th May, 1978. The tenant-appellant preferred appeal, which was allowed by the First Appellate Court by judgment and decree dated 2nd Nov., 1978. The plaintiff-respondent preferred second appeal, which was registered as S.B. Civil Second Appeal No. 26/1979. The second appeal of the landlord-plaintiff was allowed by this court on 20.2.80, but in view of the amendment in the Rent Control Act, the court was also to record the findings on the issues of the comparative hardship and on partial eviction. The plaintiff-respondent preferred second appeal, which was registered as S.B. Civil Second Appeal No. 26/1979. The second appeal of the landlord-plaintiff was allowed by this court on 20.2.80, but in view of the amendment in the Rent Control Act, the court was also to record the findings on the issues of the comparative hardship and on partial eviction. Therefore, this court sent the record to the trial court for determination of two issues, namely, whether the plaintiff will suffer greater hardship in case, the decree is not granted for eviction and to find out whether decree for part of the premises can satisfy the need of the plaintiff. The first appellate court after giving opportunity to the party, by impugned judgment and decree dated 28.1.82 held that the property in dispute can be divided as indicated in the judgment of the First Appellate court and granted the decree for partial eviction in favour of the plaintiff as well as refused the decree for rest of the premises. 4. Interestingly, the appellant is tenant, who got the relief to remain in possession of the part of the property, preferred this second appeal and in memo of appeal submitted that in case, division is carried out of the premises then neither of the parties can enjoy its apartments nor there will be any liberty, freedom and privacy to the parties. The respondent-landlord also challenging the division of the premises, hence, submitted cross-objection in this appeal on 27th May, 1982 challenging the finding of the First Appellate Court by which the plaintiff was allowed only part of the premises instead of decree for entire premises. 5. This court admitted the appeal on 24th May, 1982 and it appears from the order that both the parties admitted before this court that the questions mentioned in memo of appeal from (1) to (9) are the questions involved in this appeal and they are substantial questions of law, therefore, the questions No. 1 to 9 are accepted by the court as substantial questions of law involved in this appeal and appeal was admitted. I need not to quote all the questions given in the memo of appeal in view of the fact that the learned counsel for the appellant very frankly submitted that so far as finding of fact about the personal bonafide necessity of the plaintiff is concerned, it stands concluded by the judgment of this court delivered on 22.2.80 and only question involved in this appeal is whether the trial court was justified in passing the decree for partial eviction of the tenant from the premises. It appears from the grounds taken in the appeal also that even the tenant is submitting that in view of the nature of the property it is not possible for both the parties to enjoy the apartments. 6. It is relevant to mention here that the appellant submitted an application in this second appeal seeking amendment of the written statement. An affidavit in support of that application was also submitted alongwith several documents. By this application, the defendant-appellant wants to convey that the respondent has purchased one plot in the name of his wife by registered sale deed dated 31st March, 1985 and has raised construction of a house over a piece of land measuring 60' x 40'. It is also submitted that after occupying the part of the premises in dispute, the defendant left that premises and shifted to his house. The appellant also submits that appellant's family consisting of three sons, out of which two are married and two unmarried daughters are in the family of appellant and she will not get any other premises in case, she is to vacate the premises. 7. Heard learned counsel for the parties. In view of the admitted facts that the personal bonafide necessity of the plaintiff has been proved and upheld by this court and in view of the fact that only point pressed by learned counsel for the appellant is whether the First Appellate Court was justified in passing the decree for partial eviction of the property in dispute or not, this court need not to decide questions framed in memo of appeal from No. 1 to 9, which are also framed differently but are substantially issues more to challenge finding of First Appellate Court on issue of partial eviction only. The cross-objection of the plaintiff-respondent also raises the same question challenging the finding of the First Appellate Court recorded on issue of partial eviction, therefore, issue is decided as one involved in appeal as well as in cross-objection. 8. If it is the stand of the even defendant that the suit property cannot be partitioned in a manner that both the parties may enjoy the property then there appears no reason for not accepting the plea of the defendant-appellant and only on this ground alone, the appeal of the appellant deserves to be dismissed and cross-objection of the respondent-plaintiff deserves to be allowed as in case landlord proves his need and the property cannot accommodate landlord and tenant both, the tenant is bound to vacate the entire premises. 9. Even appeal can be allowed in view of the stand taken by the defendant in memo of appeal but I also examined the facts of this case as well as subsequent development due to passage of time. During this total period of litigation, which is about 26 years the appellant died. Marriages took place and there is increase in the members of families of both the parties. Daughters' marriages reduced the number of family members. It appears from the facts of the case that the property in dispute is a house and in view of the affidavit filed by the wife of the appellant after the death of original appellant, she is having 2 married sons, one unmarried son and two unmarried daughters. The plaintiff had four daughters and two sons at the time of filing the suit. The house is having one entrance, one stair case, one chowk and the portions overlooking on each other as mentioned in para No. 5 of the memo of appeal. The First Appellate Court thought it proper that there are two families having about 18 members can live in this home. According to appellant-tenant himself, this will be no living as it will effect not only their privacy, but liberty and freedom also of both the parties. In view of the above, it hardly lies in the mouth of the defendant-appellant to say anything more except to get out the premises of his landlord. 10. According to appellant-tenant himself, this will be no living as it will effect not only their privacy, but liberty and freedom also of both the parties. In view of the above, it hardly lies in the mouth of the defendant-appellant to say anything more except to get out the premises of his landlord. 10. I perused the reasons given by the First Appellate Court and it appears that the approach of the First Appellate Court was absolutely perverse when the First Appellate Court tried to consider the measurement of each and every room more than finding out how a landlord or a family or two families should live even in the days when the judgment was delivered by the learned First Appellate Court. It is not the question how landlord should curtail his needs to accommodate the tenant. Question is of living of a family with dignity and honour. How parties, tenant or landlord can be directed to live without privacy, freedom and liberty. 11. In view of the above, the judgment of the First Appellate Court suffers from patent illegality and is absolutely perverse, hence liable to be set aside so far by which, the First Appellate Court refused the decree for rest of the portion of the premises in dispute. 12. So far as prayer of the appellant that she may be permitted to amend the written statement so that she may plead and prove that need of the plaintiff has come to an end is concerned, it is now too late when plaintiff obtained the decree for eviction as back as in the year 1978, plaintiff's bonafide need was upheld by this court as back as on 22.2.80, 23 years ago and now this issue cannot be re-opened by the defendant-tenant that by passage of the time, the need of the plaintiff has come to an end because of the acquisition of a plot by the plaintiff in the name of his wife. Permitting such amendment, will result into frustrating the entire cause because it will need a de novo trial on the issue of the need of the plaintiff as on today. It will be worthwhile to mention here that the change in circumstances may be a ground for moulding relief, but the said proposition cannot be applied in all the cases. Permitting such amendment, will result into frustrating the entire cause because it will need a de novo trial on the issue of the need of the plaintiff as on today. It will be worthwhile to mention here that the change in circumstances may be a ground for moulding relief, but the said proposition cannot be applied in all the cases. If the proposition is examined in the light of the other propositions, the rights of the parties are required to be seen as they were on the date of filing of the suit. If in each and every case subsequent events are to be looked into then in the cases like in hand of personal necessity the plaintiff may be asked to prove his need after every five or ten years. Landlord cannot be put at the mercy of the tenant. In this case additional fact for not entertaining the plea of defendant-tenant is that the appellant-tenant cannot question the issues, which have been decided by this court finally in the year 1980 by judgment dated 20.2.80 and the decree has already been executed so far as part of the premises is concerned. Furthermore, issue involved in this appeal is about the question of partial eviction only and other issue cannot be even considered in this appeal and further in view of the fact that this appeal has no merit even if arguments of only appellant is accepted. The totality of the circumstances are sufficient for rejection of the prayer of the defendant seeking amendment of the written statement, which may result into trial of almost entire suit, which was filed almost about more than 26 years ago, hence, the prayer is rejected. 13. It is stated by learned counsel for the appellant that during the pendency of this appeal, possession of the part of the premises has already been taken by the plaintiff-respondent, therefore, the plaintiff-respondent shall be entitled to get the remaining possession of the property from the defendant-appellant. Learned counsel for the appellant submits that in view of the fact that original appellant Ishwari Lal has died and his widow is very old one, her family was consisting of 7 members when the original appellant's wife submitted affidavit before this court in the year 1998, therefore, she may be granted reasonable time to vacate the premises in dispute. 14. Consequently, the appeal of the appellant is dismissed. 14. Consequently, the appeal of the appellant is dismissed. The cross objection filed by the respondent-landlord is allowed. The decree passed by the First Appellate Court dated 28.1.82 is set aside so far as it relates to the part of the premises, which was allowed to the defendant-appellant. The suit of the plaintiff is decreed for entire premises.In view of the prayer for grant of time, the appellant is permitted six months time to vacate the premises provided appellant furnishes an undertaking before the trial court within a period of one month that appellant shall hand over the vacant possession of the property in dispute to the landlord on or before 31st March, 2004 and shall pay the entire arrears of rent, if due and shall make payment of the rent month by month in the manner in which they were paying the rent before the trial court or may pay the rent directly to the landlord-respondent. In case of default, the respondent-landlord will be entitled to execute the decree forthwith.Appeal dismissed. *******